49 U.S.C. § 47115 — Discretionary fund

(a) Existence and Amounts in Fund — The Secretary of Transportation has a discretionary fund. The fund consists of (1) amounts subject to apportionment for a fiscal year that are not apportioned under section 47114(c) through (e), and (2) 12.5 percent of amounts not apportioned under section 47114 because of section 47114(f).

(b) Availability of Amounts — Subject to subsection (c) and section 47117(e), the fund is available for grants for any purpose for which amounts are made available under section 48103 that the Secretary considers most appropriate to carry out this subchapter.

(c) Minimum Percentage for Primary and Reliever Airports — At least 75 percent of the amount in the fund that the Secretary distributes in a fiscal year must be used for grants (1) to preserve and enhance capacity, safety, and security at primary and reliever airports, and (2) to carry out airport noise-compatibility planning and programs at primary and reliever airports.

(d) Considerations — (1) For capacity-enhancement projects — When selecting a project for a grant to preserve and improve capacity that is funded in whole or in part from the fund, the Secretary must consider (A) the project's effect on the capacity of the national transportation system as a whole; (B) the project's benefits and costs, including, for a project at a reliever airport, the number of operations expected to move from a primary airport to the reliever airport because of the project, and the cost savings expected for users of the local airport system; (C) the financial commitment from sources other than the United States Government to preserve or improve airport capacity; (D) the States' airport-improvement priorities, to the extent those priorities do not conflict with subparagraphs (A) and (B); (E) the expected growth in passengers or aircraft using the airport; and (F) the project's ability to help United States competitiveness in obtaining global air-cargo activity at a United States airport. (2) For all projects — When selecting a project for a grant under this section, the Secretary must also consider whether (A) all other projects that qualify for funding during the fiscal year and have received a higher score under the numerical priority system the Secretary uses to administer the fund have been funded; and (B) the sponsor will be able to begin the work described in the project application during the fiscal year in which the grant is made or within 6 months after the grant is made, whichever is later.

(e) Waiving Percentage Requirement — If the Secretary decides that the Secretary cannot meet subsection (c)'s percentage requirement in a fiscal year because there are not enough qualified grant applications to meet that percentage, the amount the Secretary determines will not be distributed as subsection (c) requires is available for obligation during that fiscal year without regard to the requirement.

(f) Consideration of Diversion of Revenues in Awarding Discretionary Grants — (1) General rule — Subject to paragraph (2), when deciding whether to distribute funds to an airport from the discretionary funds established by subsection (a) and section 47116, the Secretary must consider against distributing those funds to the airport the fact that the airport uses airport-generated revenues or local taxes on aviation fuel for purposes other than the airport's or local airport system's capital or operating costs, or the costs of other local facilities owned or operated by the airport's owner or operator that are directly and substantially related to the actual air transportation of passengers or property. (2) Required finding — Paragraph (1) applies only when the Secretary finds that the amount of revenue the airport used for purposes other than capital or operating costs in the airport's fiscal year before the application for discretionary funds was filed is greater than the amount of that revenue in the airport's first fiscal year ending after August 23, 1994, as adjusted by the Secretary for changes in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor.

(g) Minimum Amount To Be Credited — (1) General rule — In each fiscal year, an amount must be credited to the fund from amounts made available under section 48103 that is at least the total of (A) $148,000,000 and (B) the total amount the fund must provide during that fiscal year to carry out letters of intent issued before January 1, 1996, under section 47110(e) or the Airport and Airway Improvement Act of 1982. This credited amount does not include amounts apportioned in an earlier fiscal year under section 47114 that remain available for obligation. (2) Reduction of apportionments — In a fiscal year when the amount credited under subsection (a) is less than the minimum amount required under paragraph (1), the total amount calculated under paragraph (3) must be reduced by an amount that, when credited to the fund together with the amount credited under subsection (a), equals the minimum amount. (3) Amount of reduction — For a fiscal year, the total amount available for the reduction under paragraph (2) is the total of the amounts determined under sections 47114(c)(1)(A), 47114(c)(2), 47114(d), and 47117(e). Each amount must be reduced by the same percentage to make the required reduction.

(h) Priority for Letters of Intent — When making grants in a fiscal year with funds made available under this section, the Secretary must fulfill the intentions to obligate under section 47110(e) before fulfilling the intentions to obligate under section 47110(i).

(i) Marshall Islands, Micronesia, and Palau — For fiscal years 2024 through 2028, airport sponsors in the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau are eligible for grants under this section and section 47116.

(j) Airport Safety and Resilient Infrastructure Discretionary Program — (1) In general — The Secretary must establish a program to provide grants, subject to this subsection's conditions, for any purpose for which amounts are made available under section 48103 that the Secretary considers most appropriate to carry out this subchapter. (2) Treatment of grants — (A) In general — A grant made under this subsection is treated as made under the Secretary's authority under section 47104(a) and from the Secretary's discretionary fund under subsection (a). (B) Exception — Unless this subsection provides otherwise, grants made under this subsection are not subject to subsection (c), section 47117(e), or any other apportionment formula, special apportionment category, or minimum percentage in this chapter. (3) Eligibility and prioritization — (A) Eligibility — The Secretary may provide grants under this subsection for an airport or terminal-development project at any airport eligible to receive a grant from the discretionary fund under subsection (a). (B) Minimum allocation — At least 50 percent of the amounts available under this subsection must be used for grants at nonprimary, nonhub, and small hub airports. (C) Prioritization — For grants for projects eligible under subparagraph (D)(iii), the Secretary must give priority to grants for large and medium hub airports. (D) Eligibilities — In making grants under this subsection, the Secretary must provide grants to airports for projects that (i) meet the definition of “airport development” under section 47102(3)(T); (ii) would otherwise increase the resilience of airport infrastructure against changing flooding or inundation patterns; or (iii) reduce runway incursions or increase runway or taxiway safety. (4) Authorization — (A) In general — The following amounts are authorized to be appropriated to the Secretary to carry out this subsection: (i) $532,392,074 for fiscal year 2024; (ii) $200,000,000 for fiscal year 2025; (iii) $200,000,000 for fiscal year 2026; (iv) $200,000,000 for fiscal year 2027; and (v) $200,000,000 for fiscal year 2028. (B) Availability — Amounts authorized under subparagraph (A) remain available for 3 fiscal years.

(k) Partnership Program Airports — (1) Authority — The Secretary may make grants with funds made available under this section for an airport participating in the program under section 47134 if (A) the Secretary approved an airport sponsor's application under section 47134(b) in fiscal year 2019, and (B) the grant will (i) satisfy an obligation incurred by an airport sponsor under section 47110(e) or funded by a nonpublic sponsor for an airport-development project at the airport, or (ii) provide partial Federal reimbursement for airport development, as defined in section 47102, on the airport layout plan that was initiated in the fiscal year in which the application was approved or a later fiscal year, over a period of not more than 10 years. (2) Nonapplicability of certain sections — Grants made under this subsection are not subject to (A) subsection (c), (B) section 47117(e), or (C) any other apportionment formula, special apportionment category, or minimum percentage in this chapter.

(l) Special Carryover Assumption Rule — Despite any other law, in addition to the amounts made available under paragraphs (1) and (2) of subsection (a), the Secretary may add to the discretionary fund an amount equal to one-third of the apportionment funds made available under section 47114 that were not required during the previous fiscal year under section 47117(b)(1), out of the expected amount of apportionment funds made available under section 47114 that will not be required during the current fiscal year under section 47117(b)(1).