---
kind: "section"
citation: "23 U.S.C. § 611"
title: "23"
title_heading: "Highways"
number: "611"
heading: "Asset concessions and innovative finance assistance"
release: "119-102"
url: "https://uscodex.org/usc/23/611"
units:
  - "Chapter 6 — Infrastructure Finance"
---

# §611. Asset concessions and innovative finance assistance

- (a) **Definitions.—** In this section:
  - (1) **Approved infrastructure asset.—** The term “approved infrastructure asset” means—
    - (A) a [project](/usc/23/101.md?p=a-20) (as defined in [section 601(a)](/usc/23/601.md?p=a)); and
    - (B) a group of [projects](/usc/23/101.md?p=a-20) (as defined in [section 601(a)](/usc/23/601.md?p=a)) considered together in a single [asset concession](#a-2) or long-term lease to a [concessionaire](#a-4) by 1 or more [eligible entities](#a-5-A).
  - (2) **Asset concession.—** The term “asset concession” means a contract between an [eligible entity](#a-5-A) and a [concessionaire](#a-4)—
    - (A) under which—
      - (i) the [eligible entity](#a-5-A) agrees to enter into a concession agreement or long-term lease with the [concessionaire](#a-4) relating to an [approved infrastructure asset](#a-1) owned, controlled, or maintained by the [eligible entity](#a-5-A);
      - (ii) as consideration for the agreement or lease described in [clause (i)](#a-2-A-i), the [concessionaire](#a-4) agrees—
        - (I) to provide to the [eligible entity](#a-5-A) 1 or more [asset concession payments](#a-3); and
        - (II) to maintain or exceed the condition, performance, and service level of the [approved infrastructure asset](#a-1), as compared to that condition, performance, and service level on the date of execution of the agreement or lease; and
      - (iii) the [eligible entity](#a-5-A) and the [concessionaire](#a-4) agree that the costs for a fiscal year of the agreement or lease, and any [project](/usc/23/101.md?p=a-20) carried out under the agreement or lease, shall not be shifted to any taxpayer the annual household income of whom is less than $400,000 per year, including through taxes, user fees, tolls, or any other measure, for use of an [approved infrastructure asset](#a-1); and
    - (B) the terms of which do not include any noncompete or exclusivity restriction (or any other, similar restriction) on the approval of another [project](/usc/23/101.md?p=a-20).
  - (3) **Asset concession payment.—** The term “asset concession payment” means a payment that—
    - (A) is made by a [concessionaire](#a-4) to an [eligible entity](#a-5-A) for fair market value that is determined as part of the [asset concession](#a-2); and
    - (B) may be—
      - (i) a payment made at the financial close of an [asset concession](#a-2); or
      - (ii) a series of payments scheduled to be made for—
        - (I) a fixed period; or
        - (II) the term of an [asset concession](#a-2).
  - (4) **Concessionaire.—** The term “concessionaire” means a private individual or a private or publicly chartered corporation or entity that enters into an [asset concession](#a-2) with an [eligible entity](#a-5-A).
  - (5) **Eligible entity.—**
    - (A) **In general.—** The term “eligible entity” means an entity described in [subparagraph (B)](#a-5-B) that—
      - (i) owns, controls, or maintains an [approved infrastructure asset](#a-1); and
      - (ii) has the legal authority to enter into a contract to transfer ownership, [maintenance](/usc/23/101.md?p=a-13), operations, revenues, or other benefits and responsibilities for an [approved infrastructure asset](#a-1).
    - (B) **Entities described.—** An entity referred to in [subparagraph (A)](#a-5-A) is any of the following:
      - (i) A [State](/usc/23/101.md?p=a-28).
      - (ii) A Tribal government.
      - (iii) A unit of local government.
      - (iv) An agency or instrumentality of a [State](/usc/23/101.md?p=a-28), Tribal government, or unit of local government.
      - (v) A special purpose district or [public authority](/usc/23/101.md?p=a-22).
- (b) **Establishment.—** The [Secretary](/usc/23/101.md?p=a-27) shall establish a program to facilitate access to expert services for, and to provide grants to, [eligible entities](#a-5-A) to enhance the technical capacity of [eligible entities](#a-5-A) to facilitate and evaluate public-private partnerships in which the private sector partner could assume a greater role in [project](/usc/23/101.md?p=a-20) planning, development, financing, [construction](/usc/23/101.md?p=a-4), [maintenance](/usc/23/101.md?p=a-13), and operation, including by assisting [eligible entities](#a-5-A) in entering into [asset concessions](#a-2).
- (c) **Applications.—** To be eligible to receive a grant under this section, an [eligible entity](#a-5-A) shall submit to the [Secretary](/usc/23/101.md?p=a-27) an application at such time, in such manner, and containing such information as the [Secretary](/usc/23/101.md?p=a-27) may require.
- (d) **Eligible Activities.—**
  - (1) **Technical assistance grants.—** An [eligible entity](#a-5-A) may use amounts made available from a grant under this section for technical assistance to build the organizational capacity of the [eligible entity](#a-5-A) to develop, review, or enter into an [asset concession](#a-2), including for—
    - (A) identifying appropriate assets or [projects](/usc/23/101.md?p=a-20) for [asset concessions](#a-2);
    - (B) soliciting and negotiating [asset concessions](#a-2), including hiring staff in public agencies;
    - (C) conducting a value-for-money analysis, or a comparable analysis, to evaluate the comparative benefits of [asset concessions](#a-2) and public debt or other procurement methods;
    - (D) evaluating options for the structure and use of [asset concession payments](#a-3);
    - (E) evaluating and publicly presenting the risks and benefits of all contract provisions for the purpose of transparency and accountability;
    - (F) identifying best practices to protect the public interest and priorities;
    - (G) identifying best practices for managing transportation demand and mobility along a corridor, including through provisions of the [asset concession](#a-2), to facilitate transportation demand management strategies along the corridor that is subject to the [asset concession](#a-2); and
    - (H) integrating and coordinating pricing, data, and fare collection with other regional operators that exist or may be developed.
  - (2) **Expert services.—** An [eligible entity](#a-5-A) seeking to leverage public and private funding in connection with the development of an early-stage [approved infrastructure asset](#a-1), including in the development of alternative approaches to [project](/usc/23/101.md?p=a-20) delivery or procurement, may use amounts made available from a grant under this section to retain the services of an expert firm to provide to the [eligible entity](#a-5-A) direct [project](/usc/23/101.md?p=a-20) level assistance, which services may include—
    - (A) [project](/usc/23/101.md?p=a-20) planning, feasibility studies, revenue forecasting, economic assessments and cost-benefit analyses, public benefit studies, value-for-money analyses, business case development, lifecycle cost analyses, risk assessment, financing and funding options analyses, procurement alternatives analyses, statutory and regulatory framework analyses and other pre-procurement and pre-[construction](/usc/23/101.md?p=a-4) activities;
    - (B) financial and legal planning (including the identification of statutory authorization, funding, and financing options);
    - (C) early assessment of permitting, environmental review, and regulatory processes and costs; and
    - (D) assistance with entering into an [asset concession](#a-2).
- (e) **Distribution.—**
  - (1) **Maximum amount.—**
    - (A) **Technical assistance grants.—** The maximum amount of a technical assistance grant under [subsection (d)(1)](#d-1) shall be $2,000,000.
    - (B) **Expert services.—** The maximum amount of the value of expert services retained by an [eligible entity](#a-5-A) under [subsection (d)(2)](#d-2) shall be $2,000,000.
  - (2) **Cost sharing.—**
    - (A) **In general.—** Except as provided in [subparagraph (B)](#e-2-B), the Federal share of the cost of an activity carried out under this section may be up to 100 percent.
    - (B) **Certain projects.—** If the amount of the grant provided to an [eligible entity](#a-5-A) under this section is more than $1,000,000, the Federal share of the cost of an activity carried out using grant amounts in excess of $1,000,000 shall be 50 percent.
  - (3) **Statewide maximum.—** The aggregate amount made available under this section to [eligible entities](#a-5-A) within a [State](/usc/23/101.md?p=a-28) shall not exceed, on a cumulative basis for all [eligible entities](#a-5-A) within the [State](/usc/23/101.md?p=a-28) during any 3-year period, $4,000,000.
- (f) **Requirements.—**
  - (1) **In general.—** The [Secretary](/usc/23/101.md?p=a-27) shall ensure that, as a condition of receiving a grant under this section, for any [asset concession](#a-2) for which the grant provides direct assistance—
    - (A) the [asset concession](#a-2) shall not prohibit, discourage, or make it more difficult for an [eligible entity](#a-5-A) to construct new infrastructure, to provide or expand transportation services, or to manage associated infrastructure in publicly beneficial ways, along a transportation corridor or in the proximity of a transportation facility that was a part of the [asset concession](#a-2);
    - (B) the [eligible entity](#a-5-A) shall have adopted binding rules to publish all major business terms of the proposed [asset concession](#a-2) not later than the date that is 30 days before entering into the [asset concession](#a-2), to enable public review, including a certification of public interest based on the results of an assessment under [subparagraph (D)](#f-1-D);
    - (C) the [asset concession](#a-2) shall not result in displacement, job loss, or wage reduction for the existing workforce of the [eligible entity](#a-5-A) or other public entities;
    - (D) the [eligible entity](#a-5-A) or the [concessionaire](#a-4) shall carry out a value-for-money analysis, or similar assessment, to compare the aggregate costs and benefits to the [eligible entity](#a-5-A) of the [asset concession](#a-2) against alternative options to determine whether the [asset concession](#a-2) generates additional public benefits and serves the public interest;
    - (E) the full amount of any [asset concession payment](#a-3) received by the [eligible entity](#a-5-A) under the [asset concession](#a-2), less any amount paid for transaction costs relating to the [asset concession](#a-2), shall be used to pay infrastructure costs of the [eligible entity](#a-5-A); and
    - (F) the terms of the [asset concession](#a-2) shall not result in any increase in costs under the [asset concession](#a-2) being shifted to taxpayers the annual household income of whom is less than $400,000 per year, including through taxes, user fees, tolls, or any other measure, for use of an [approved infrastructure asset](#a-1).
  - (2) **Audit.—** Not later than 3 years after the date on which an [eligible entity](#a-5-A) enters into an [asset concession](#a-2) as a result of a grant under this section—
    - (A) the [eligible entity](#a-5-A) shall hire an independent auditor to evaluate the performance of the [concessionaire](#a-4) based on the requirements described in [paragraph (1)](#f-1); and
    - (B) the independent auditor shall submit to the [eligible entity](#a-5-A), and make publicly available, a report describing the results of the audit under [subparagraph (A)](#f-2-A).
  - (3) **Treatment.—** Unless otherwise provided under [paragraph (1)](#f-1), the [Secretary](/usc/23/101.md?p=a-27) shall not, as a condition of receiving a grant under this section, prohibit or otherwise prevent an [eligible entity](#a-5-A) from entering into, or receiving any [asset concession payment](#a-3) under, an [asset concession](#a-2) for an [approved infrastructure asset](#a-1) owned, controlled, or maintained by the [eligible entity](#a-5-A).
  - (4) **Applicability of federal laws.—** Nothing in this section exempts a [concessionaire](#a-4) or an [eligible entity](#a-5-A) from a compliance obligation with respect to any applicable Federal or [State](/usc/23/101.md?p=a-28) law that would otherwise apply to the [concessionaire](#a-4), the [eligible entity](#a-5-A), or an [approved infrastructure asset](#a-1).
- (g) **Funding.—**
  - (1) **In general.—** On October 1, 2021, and on each October 1 thereafter through October 1, 2025, out of any funds in the Treasury not otherwise appropriated, the [Secretary](/usc/23/101.md?p=a-27) of the Treasury shall transfer to the [Secretary](/usc/23/101.md?p=a-27) to carry out this section $20,000,000, to remain available until expended.
  - (2) **Receipt and acceptance.—** The [Secretary](/usc/23/101.md?p=a-27) shall be entitled to receive, shall accept, and shall use to carry out this section the funds transferred under [paragraph (1)](#g-1), without further appropriation.

## Source credit

(Added Pub. L. 117–58, div. G, title X, § 71001(a)(1), Nov. 15, 2021, 135 Stat. 1316.)