Regular Session 2021-2022 Senate Bill 0382 P.N. 1849

PRIOR PRINTER'S NOS. 309, 638, 1231

PRINTER'S NO. 1849

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

382

Session of

2021

INTRODUCED BY LANGERHOLC, REGAN, DiSANTO, MENSCH, BARTOLOTTA,

ROBINSON, BAKER, J. WARD, BROOKS, STEFANO, HUTCHINSON, DUSH,

PITTMAN, GORDNER, MARTIN, AUMENT, BROWNE AND LAUGHLIN,

MARCH 9, 2021

AMENDMENTS TO HOUSE AMENDMENTS, IN SENATE, JULY 6, 2022

AN ACT

Amending Title 74 (Transportation) of the Pennsylvania

Consolidated Statutes, in public-private transportation

partnerships, further providing for definitions, for duties

of board, for operation of board and, for selection of

development entities, FOR PUBLIC-PRIVATE TRANSPORTATION

PARTNERSHIP AGREEMENT AND FOR TAXATION OF DEVELOPMENT ENTITY

AND PROVIDING FOR PROHIBITION ON MANDATORY USER FEES; and

voiding prior initiatives RESCINDING, IN PART, A RESOLUTION

of the Public-Private Transportation Partnership Board.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The definition of "public-private transportation

partnership agreement" in section 9102 of Title 74 of the

Pennsylvania Consolidated Statutes is amended and the section is

amended by adding a definition to read:

§ 9102. Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

* * *

<--

<--<--

"Public-private transportation partnership agreement." A

contract for a transportation project which transfers the rights

for the use or control, in whole or in part, of a transportation

facility by a public entity to a development entity for a

definite term during which the development entity will provide

the transportation project to the public entity in return for

the right to receive all or a portion of the revenue generated

from the use of the transportation facility, or other payment,

such as [the following] transportation-related services.[:

(1) Operations and maintenance.

(2) Revenue collection.

(3) User fee collection or enforcement.

(4) Design.

(5) Construction.

(6) Development and other activities with respect to

existing or new transportation facilities that enhance

traffic throughput, reduce congestion, improve safety or

otherwise manage or improve a transportation facility.

(7) Financing.]

* * *

"Transportation-related service." Only the following

services:

(1) Operations and maintenance.

(2) Revenue collection.

(3) User OPTIONAL USER fee collection or enforcement.

(4) Design.

(5) Construction.

(6) Development and other activities with respect to

existing or new transportation facilities that enhance

traffic throughput, reduce congestion, improve safety or

20210SB0382PN1849 - 2 -

<--

otherwise manage or improve a transportation facility.

(7) Financing.

Section 2. Section 9104(a)(2) and (4) and (c) (C)(1) of

Title 74 are amended to read:

§ 9104. Duties of board.

(a) Duties.--The board shall do all of the following:

* * *

(2) Adopt guidelines establishing the procedure by which

a public entity may submit a request for a proposed

transportation project or a private entity may submit an

unsolicited plan for a proposed transportation project to the

board.

* * *

(4) Evaluate and, where the board finds that the

requests or plans for proposed transportation projects are in

the best interests of the Commonwealth and a public entity,

approve the requests or plans for proposed transportation

projects[. NO PROPOSED TRANSPORTATION PROJECT THAT PROVIDES

FOR OPTIONAL USER FEES MAY BE APPROVED BY THE BOARD UNLESS

THE BOARD MEMBERS APPROVE SUCH A PROJECT UNANIMOUSLY. The

board shall approve a proposed transportation project by

adopting a resolution.] as provided under section 9105.

* * *

[(c) General Assembly.--The following shall apply:

(1) [The] UPON RECEIPT OF THE RESOLUTION FROM THE BOARD

UNDER SECTION 9105(B.2), THE General Assembly may, within 20

calendar days or [nine legislative days, whichever is longer,

of the adoption of the resolution under subsection (a)(4),]

pass a concurrent resolution rescinding the approval of a

transportation project if the transportation facility which

20210SB0382PN1849 - 3 -

<--

is the subject of the transportation project is owned by the

Commonwealth.

(2) If the General Assembly adopts the concurrent

resolution within the time period under paragraph (1) by

majority vote in both the Senate and the House of

Representatives, the transportation project shall be deemed

disapproved.

(3) If the General Assembly fails to adopt the

concurrent resolution by majority vote in both the Senate and

the House of Representatives within the time period under

paragraph (1), the transportation project shall be deemed

approved.]

* * *

Section 3. Section 9105(b) of Title 74 is amended and the

section is amended by adding subsections to read:

§ 9105. Operation of board.

* * *

(b) Analysis.--The following shall apply:

(1) The department shall develop a detailed analysis of

a request or recommendation for a proposed transportation

project prior to requesting approval by the board.

(2) The analysis shall include the following:

(i) The exact ANTICIPATED location of the proposed

transportation project.

(ii) The type of transportation facility or

transportation-related service to be improved.

(iii) The estimated costs of the proposed

transportation project to the public entity.

(iv) The estimated length of the public-private

transportation partnership agreement.

20210SB0382PN1849 - 4 -

<--

(v) The POTENTIAL social, economic and environmental

impacts of the proposed transportation project.

(vi) If the proposed transportation project requires

a PROPOSES AN OPTIONAL user fee, include the estimated

amount for each user group and type of user fee as

described under section 9110(f) (relating to public-

private transportation partnership agreement).

(vii) Applicable Federal and State laws.

(viii) Alternative courses of action to improve the

transportation facility or transportation-related service

without a public-private transportation partnership and

the associated risks of improving the transportation

facility or transportation-related service with a public-

private transportation partnership.

(2.1) The department may conduct additional evaluations

prior to the development of the analysis.

(3) The department shall post a copy of the analysis on

the department's publicly accessible Internet website, submit

the analysis to the board and the chairperson and minority

chairperson of the Transportation Committee of the Senate and

the chairperson and minority chairperson of the

Transportation Committee of the House of Representatives and

transmit notice of the analysis to the Legislative Reference

Bureau for publication in the Pennsylvania Bulletin for 30 60

days prior to any action by the board.

(b.1) Public input.--The following shall apply:

(1) The department shall collect comments from the

public on the proposed transportation project during a public

comment period which shall commence with the publication of

the notice in the Pennsylvania Bulletin of the analysis and

20210SB0382PN1849 - 5 -

<--

shall continue for a period of not less than 30 days. Prior

to any action by the board, the department shall post a copy

of all submitted comments and a summary as provided under

paragraph (2) on the department's publicly accessible

Internet website and provide the submitted comments and

summary to the board and the chairperson and minority

chairperson of the Transportation Committee of the Senate and

the chairperson and minority chairperson of the

Transportation Committee of the House of Representatives.

(2) The summary under paragraph (1) shall include a

description of the proposed transportation project, a copy of

the notice that was published in the Pennsylvania Bulletin,

the time period that the public was allowed to provide input ,

an overview of how the department equitably solicited input

from persons affected by the proposed transportation project

and a chart or graph that accurately portrays all submitted

comments, including the positive and negative public input,

on the proposed transportation project.

(b.2) Evaluation and approval.--The following shall apply:

(1) After consideration of the analysis and public input

COMMEN T , if the board finds that the proposed transportation

project is in the best interests of the Commonwealth, it may

approve the proposed transportation project in the form of a

resolution . FOR A PROPOSED TRANSPORTATION PROJECT THAT MAY

IMPOSE AN OPTIONAL USER FEE, UNANIMOUS APPROVAL OF THE BOARD

IS REQUIRED.

(2) Approval of a proposed transportation project with

or without a , INCLUDING A PROJECT WITH AN OPTIONAL user fee ,

shall be in the form of a resolution signed by the

chairperson of the board. A copy of the resolution shall be

20210SB0382PN1849 - 6 -

<--

posted on the department's publicly accessible Internet

website and shall be transmitted by the department to the

following entities within 24 48 hours after approval:

(i) The chairperson and minority chairperson of the

Transportation Committee of the Senate and the

chairperson and minority chairperson of the

Transportation Committee of the House of Representatives.

(ii) The Legislative Reference Bureau for

publication in the Pennsylvania Bulletin.

(b.3) Transportation projects with a user fee.-- Except as

provided for under subsection (b.5), the following shall apply

to a proposed transportation project with a user fee:

(1) No later than five calendar days after the

resolution is published in the Pennsylvania Bulletin, the

department shall transmit the resolution to the Governor. The

Governor shall have 10 calendar days to approve or disapprove

the resolution. If no action is taken on the resolution by

the Governor within 10 calendar days of receipt of the

resolution, the resolution shall be deemed approved. If the

Governor approves the resolution or fails to act, the

Governor shall, within 10 calendar days, transmit the

resolution to the Secretary of the Senate and the Chief Clerk

of the House of Representatives for consideration by the

General Assembly. If the Governor disapproves the resolution,

the objections of the Governor disapproving the resolution

shall be transmitted to the department within 10 calendar

days and the public entity may not proceed with the public-

private partnership agreement .

(2) Upon receipt of the resolution from the Governor

under paragraph (1), the General Assembly may adopt a

20210SB0382PN1849 - 7 -

<--

concurrent resolution approving the resolution submitted by

the Governor, subject to all of the following:

(i) The Senate and the House of Representatives

shall each have 20 calendar days or 10 legislative days,

whichever is longer, from the date of receipt of the

resolution from the Governor to adopt the concurrent

resolution.

(ii) If one or both chambers of the General Assembly

is prevented from adopting a concurrent resolution during

the time period provided under subparagraph (i) because

of the adjournment sine die or the expiration of the

legislative session in an even-numbered year, each

chamber shall have 20 calendar days or 10 legislative

days, whichever is longer, from the first legislative day

of the succeeding legislative session to adopt the

concurrent resolution.

(iii) If the General Assembly adopts the concurrent

resolution approving the resolution submitted by the

Governor during the time periods provided under

subparagraphs (i) or (ii), the public entity may proceed

with the public-private partnership agreement.

(3) If either chamber of the General Assembly fails to

adopt the concurrent resolution in the time periods provided

under paragraph (2), the resolution submitted by the Governor

shall be deemed disapproved and the public entity may not

proceed with the public-private partnership agreement. The

presiding officer of a chamber that fails to adopt a

concurrent resolution shall transmit the objections of the

chamber to the department within 10 calendar days of the date

on which the time periods provided under paragraph (2)

20210SB0382PN1849 - 8 -

expires.

(4) If the Governor disapproves a resolution adopted by

the board under paragraph (1), or if the General Assembly

fails to adopt a concurrent resolution under paragraph (2),

the department may, in consultation with the public entity

that is the subject of the proposed transportation project if

the public entity is not the department, amend the proposed

transportation project and submit an amended resolution to

the board for approval, subject to all of the following:

(i) An amended resolution submitted to the board

under this paragraph shall not be subject to subsection

(b.1), but shall be subject to all other requirements

under this section applicable to the approval of a

proposed transportation project through a resolution

adopted by the board.

(ii) If the Governor disapproves an amended

resolution adopted by the board under paragraph (1) or if

the General Assembly fails to adopt a concurrent

resolution under paragraph (2) approving the amended

resolution submitted by the Governor, the public entity

may not proceed with the public-private partnership

agreement and additional amended resolutions may not be

considered under the provisions of this paragraph,

provided that the proposed transportation project that is

the subject of the disapproved amended resolution may be

subsequently submitted for approval to the board as a new

resolution and be subject to the provisions of this

chapter.

(b.4) Transportation projects without a user fee.-- Except as

provided for under subsection (b.5), the following shall apply

20210SB0382PN1849 - 9 -

to a proposed transportation project without a user fee:

(1) No later than five calendar days after the

resolution is published in the Pennsylvania Bulletin, the

department shall transmit the resolution to the Governor. The

Governor shall have 10 calendar days to approve or disapprove

the resolution. If no action is taken on the resolution by

the Governor within 10 calendar days of receipt of the

resolution, the resolution shall be deemed approved. If the

Governor approves the resolution or fails to act, the

Governor shall, within 10 calendar days, transmit the

resolution to the Secretary of the Senate and the Chief Clerk

of the House of Representatives for consideration by the

General Assembly. If the Governor disapproves the resolution,

the objections of the Governor disapproving the resolution

shall be transmitted to the department within 10 calendar

days and the public entity may not proceed with the public-

private partnership agreement .

(2) Upon receipt of the resolution from the Governor

under paragraph (1), the General Assembly may adopt a

concurrent resolution disapproving the resolution submitted

by the Governor, subject to all of the following:

(i) The Senate and the House of Representatives

shall each have 20 calendar days or 10 legislative days,

whichever is longer, from the date of receipt of the

resolution from the Governor to adopt the concurrent

resolution disapproving the resolution submitted by the

Governor.

(ii) If one or both chambers of the General Assembly

is prevented from adopting a concurrent resolution during

the time period provided under subparagraph (i) because

20210SB0382PN1849 - 10 -

of the adjournment sine die or the expiration of the

legislative session in an even-numbered year, each

chamber shall have 20 calendar days or 10 legislative

days, whichever is longer, from the first legislative day

of the succeeding legislative session to adopt the

concurrent resolution.

(iii) If the General Assembly adopts the concurrent

resolution disapproving the resolution submitted by the

Governor during the time periods provided under

subparagraphs (i) or (ii), the public entity may not

proceed with the public-private partnership agreement.

The presiding officer of each chamber shall transmit the

objections of their respective chamber to the department

within 10 calendar days of the date on which the General

Assembly adopted the concurrent resolution.

(3) If either chamber of the General Assembly fails to

adopt the concurrent resolution in the time periods provided

under paragraph (2), the resolution submitted by the Governor

shall be deemed approved and the public entity may proceed

with the public-private partnership agreement.

(4) If the Governor disapproves a resolution adopted by

the board under paragraph (1) or if the General Assembly

adopts a concurrent resolution under paragraph (2), the

department may, in consultation with the public entity that

is the subject of the proposed transportation project if the

public entity is not the department, amend the proposed

transportation project and submit an amended resolution to

the board for approval, subject to all of the following:

(i) An amended resolution submitted to the board

under this paragraph shall not be subject to subsection

20210SB0382PN1849 - 11 -

(b.1), but shall be subject to all other requirements

under this section applicable to the approval of a

proposed transportation project through a resolution

adopted by the board.

(ii) If the Governor disapproves an amended

resolution adopted by the board under paragraph (1) or if

the General Assembly adopts a concurrent resolution under

paragraph (2), the public entity may not proceed with the

public-private partnership agreement and additional

amended resolutions may not be considered under the

provisions of this paragraph, provided that the proposed

transportation project that is the subject of the

disapproved amended resolution may be subsequently

submitted for approval to the board as a new resolution

and be subject to the provisions of this chapter.

(b.5) Approval of local transportation projects.--

(1) Subsections (b.3) and (b.4) shall not apply to a

proposed transportation project if the transportation

facility which is the subject of the proposed transportation

project is not owned by the Commonwealth.

(2) A proposed transportation project as described in

paragraph (1) shall be deemed approved upon the adoption of a

resolution by the board under section 9104(a)(4) (relating to

duties of board).

* * *

Section 4. Section 9109(a) of Title 74 is amended to read:

SECTIONS 9109(A), 9110(F) AND 9115(A) AND (B) OF TITLE 74 ARE

AMENDED TO READ:

§ 9109. Selection of development entities.

(a) Conditions for use.--If a transportation project is

20210SB0382PN1849 - 12 -

<--

approved under [section] sections 9104 (relating to duties of

board) and 9105 (relating to operation of board), the public

entity may enter into a contract for the transportation project

by competitive sealed proposals.

* * *

§ 9110. PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIP AGREEMENT.

* * *

(F) [USER] OPTIONAL USER FEES.--A PROVISION ESTABLISHING

WHETHER OPTIONAL USER FEES WILL BE IMPOSED FOR USE OF THE

PUBLIC-PRIVATE TRANSPORTATION PROJECT AND THE BASIS BY WHICH ANY

OPTIONAL USER FEES WILL BE IMPOSED AND COLLECTED SHALL BE

DETERMINED IN THE PUBLIC-PRIVATE TRANSPORTATION PARTNERSHIP

AGREEMENT. IF [A] AN OPTIONAL USER FEE IS PROPOSED AS PART OF

THE PUBLIC-PRIVATE TRANSPORTATION PROJECT, A PROPRIETARY PUBLIC

ENTITY SHALL INCLUDE PROVISIONS IN THE AGREEMENT THAT AUTHORIZE

THE COLLECTION OF OPTIONAL USER FEES, TOLLS, FARES OR SIMILAR

CHARGES, INCLUDING PROVISIONS THAT:

(1) SPECIFY TECHNOLOGY TO BE USED IN THE PUBLIC-PRIVATE

TRANSPORTATION PROJECT.

(2) ESTABLISH CIRCUMSTANCES UNDER WHICH THE PROPRIETARY

PUBLIC ENTITY MAY RECEIVE A SHARE OF REVENUES FROM THE

CHARGES.

(3) GOVERN THE ENFORCEMENT OF OPTIONAL ELECTRONIC TOLLS,

INCLUDING PROVISIONS FOR USE OF AVAILABLE TECHNOLOGY.

(4) ESTABLISH PAYMENT COLLECTION STANDARDS, INCLUDING

PROVISIONS FOR ENFORCEMENT OF NONPAYMENT AND PENALTIES.

(5) IN THE EVENT AN OPERATOR OF A VEHICLE FAILS TO PAY

THE [PRESCRIBED] OPTIONAL TOLL OR USER FEE AT ANY LOCATION ON

A PUBLIC-PRIVATE TRANSPORTATION PROJECT WHERE OPTIONAL TOLLS

OR USER FEES ARE COLLECTED BY MEANS OF AN ELECTRONIC OR OTHER

20210SB0382PN1849 - 13 -

<--

AUTOMATED OR REMOTE FORM OF COLLECTION, THE COLLECTION

PROVISIONS OF SECTION 8117 (RELATING TO ELECTRONIC TOLL

COLLECTION) SHALL APPLY EXCEPT THAT THE DEVELOPMENT ENTITY

SHALL POSSESS ALL OF THE RIGHTS, ROLES, LIMITATIONS AND

RESPONSIBILITIES OF THE PENNSYLVANIA TURNPIKE COMMISSION.

* * *

§ 9115. TAXATION OF DEVELOPMENT ENTITY.

(A) GENERAL RULE.--TO THE EXTENT THAT REVENUES OR OPTIONAL

USER FEES RECEIVED BY A DEVELOPMENT ENTITY PURSUANT TO A PUBLIC-

PRIVATE TRANSPORTATION PARTNERSHIP AGREEMENT ARE SUBJECT TO A

TAX IMPOSED BY A POLITICAL SUBDIVISION PRIOR TO THE EFFECTIVE

DATE OF THIS SECTION, THE REVENUES OR USER FEES SHALL CONTINUE

TO BE SUBJECT TO THE TAX AND TO FUTURE INCREASES IN THE RATE OF

THE TAX.

(B) NEW TAXATION BARRED.--AFTER THE EFFECTIVE DATE OF THIS

SECTION, NO NEW TAX SHALL BE IMPOSED BY A POLITICAL SUBDIVISION

OR THE COMMONWEALTH ON THE REVENUES OR OPTIONAL USER FEES

RECEIVED BY A DEVELOPMENT ENTITY PURSUANT TO A PUBLIC-PRIVATE

TRANSPORTATION PARTNERSHIP AGREEMENT.

* * *

SECTION 5. TITLE 74 IS AMENDED BY ADDING A SECTION TO READ:

§ 9115.1. PROHIBITION ON MANDATORY USER FEES.

A USER FEE MAY NOT BE IMPOSED AS PART OF A TRANSPORTATION

PROJECT APPROVED UNDER THIS CHAPTER, UNLESS THE USER FEE IS

IMPOSED ONLY ON INDIVIDUALS WHO SELECT OPTIONAL MEANS TO TRANSIT

THE TRANSPORTATION FACILITY, SUCH AS LIMITED ACCESS LANES OR

SIMILAR PROGRAMS THAT ALLOW INDIVIDUALS MULTIPLE MEANS TO

TRANSIT THE SAME TRANSPORTATION FACILITY.

Section 5. The amendment of 74 Pa.C.S. §§ 9102, 9104, 9105

and 9109 shall apply to resolutions considered after October 31,

20210SB0382PN1849 - 14 -

<--

2020, by the Public-Private Transportation Partnership Board.

Any resolution considered after October 31, 2020, and prior to

the effective date of this section by the Public-Private

Transportation Partnership Board, including the resolution

adopted by the Public-Private Transportation Partnership Board

on November 12, 2020, approving the public-private partnership

delivery model for interstate bridges or expressway bridges and

referred to in the resolution as the PennDOT Pathways Major

Bridge P3 Initiative, shall be void and the Department of

Transportation is prohibited from entering into a public-private

transportation partnership agreement with a development entity

to utilize a public-private partnership delivery model for

interstate bridges or expressway bridges, including associated

roadwork, unless the Department of Transportation submits a

resolution after the effective date of this act to the Public-

Private Transportation Partnership Board and the resolution is

approved under 74 Pa.C.S. Ch. 91 as amended by this act.

SECTION 6. THE FOLLOWING SHALL APPLY:

(1) EXCEPT AS PROVIDED UNDER PARAGRAPHS (2) AND (3), THE

RESOLUTION RATIFYING ACTION OF THE PUBLIC-PRIVATE

TRANSPORTATION BOARD ON NOVEMBER 12, 2020, APPROVING THE

PUBLIC-PRIVATE PARTNERSHIP DELIVERY MODEL, INCLUDING USER

FEES, FOR INTERSTATE BRIDGES OR EXPRESSWAY BRIDGES SHALL BE

RESCINDED.

(2) NOTWITHSTANDING ANY OTHER PROVISION OF LAW AND

SUBJECT TO PARAGRAPH (3), THE DEPARTMENT OF TRANSPORTATION

MAY CONTINUE WORK AND PROCEED WITH THE TRANSPORTATION PROJECT

RATIFIED BY THE RESOLUTION UNDER PARAGRAPH (1), INCLUDING ANY

CONTRACT ISSUED UNDER A PUBLIC-PRIVATE PARTNERSHIP DELIVERY

MODEL, BUT MAY NOT IMPOSE OR COLLECT USER FEES UNLESS THE

20210SB0382PN1849 - 15 -

<--

DEPARTMENT SUBMITS THE TRANSPORTATION PROJECT FOR APPROVAL

UNDER 74 PA.C.S. CH. 91 AFTER THE EFFECTIVE DATE OF THIS

SECTION.

(3) THE TRANSPORTATION PROJECT RATIFIED BY THE

RESOLUTION UNDER PARAGRAPH (1) SHALL ONLY PROVIDE AUTHORITY

TO THE DEPARTMENT FOR THE FOLLOWING TRANSPORTATION

FACILITIES:

(I) ALLEGHENY COUNTY, BRIDGE KEYS 855 AND 858.

(II) BERKS COUNTY, BRIDGE KEY 4677.

(III) CLARION COUNTY, BRIDGE KEYS 10944 AND 10945.

(IV) DAUPHIN COUNTY, BRIDGE KEY 14257.

(V) JEFFERSON COUNTY, BRIDGE KEYS 19565 AND 19566.

(VI) LUZERNE COUNTY, BRIDGE KEYS 23645 AND 23646.

(VII) LUZERNE AND CARBON COUNTIES, BRIDGE KEYS 8972

AND 8974.

(VIII) PHILADELPHIA COUNTY, BRIDGE KEYS 38533 AND

38535.

(IX) SUSQUEHANNA COUNTY, BRIDGE KEYS 32209 AND

32210.

Section 6 7. This act shall take effect immediately.

20210SB0382PN1849 - 16 -

<--