On Friday, November 5, the U.S. House of Representatives passed the bill by a vote of 228 to 206 after weeks of negotiations.
The bill will make available $1.2 trillion in funding for infrastructure programs across the transportation, energy and water sectors, through a combination of grants and loans. Of the $1.2 trillion in spending, $550 billion is new federal spending not previously authorized. The bill also reauthorizes the highway, public transportation and rail programs for five years. Here's a brief look at the bill with an emphasis on new programs and policies.
Department of Transportation
Key Highway Programs
The bill makes available $219.6 billion over five years for the Federal-Aid Highway Program and $110 billion in supplemental funds for roads, bridges and major projects. Many of the programs are existing programs authorized in previous laws with more significant funding. Of note, a number of programs have expanded eligibility for electric vehicles and alternative charging infrastructure, resilient infrastructure and projects in low-income neighborhoods. We also note new programs and important changes to existing programs, and that many grant programs have a nonfederal match requirement.
Nationally Significant Freight and Highway Projects program (also known as “INFRA”).
Bridge Investment Program
Congestion Relief Program
Rural Surface Transportation Grant Program
Promoting Resilient Operations for Transformative, Efficient and Cost Savings Transportation (PROTECT) Grant Program
Grants for Reduction ofTruck Emissions at Port Facilities Program
Healthy Streets Program
Charging and Fueling Infrastructure Competitive Grants
National Electric Vehicle Formula Program
Carbon Reduction Formula Program
Wildlife Crossings Pilot Program
Reconnecting Communities Pilot Program
ActiveTransportation Infrastructure Investment Program
Safe Streets and Roads for All Competitive Grant Program
Strengthening Mobility and Revolutionizing Transportation (SMART) Grant Program
Culvert Removal, Replacement and Restoration Grant Program
Passenger and Freight Rail Programs
The bill appropriates $66 billion in new spending for passenger and freight rail programs. The following summarizes new programs or current programs that the bill has expanded in scope.
Consolidated Rail Infrastructure and Safety Improvements Grants (CRISI)
Railroad Crossing Elimination Program
Federal-State Partnership for Intercity Passenger Rail Grants
Local and Regional Project Assistance (the RAISE/BUILD program)
National Infrastructure Project Assistance Program
Airport Programs
The bill appropriates $25 billion in supplemental funding for airports. This is on top of the funds authorized for airports under existing law. In addition, the bill makes airport projects eligible for low cost financing from DOT as discussed below.
Airport Infrastructure Grants. The bill appropriates $15 billion to the Airport Improvement Program (AIP). Of the $15 billion, up to $2.48 billion annually is for primary airports, up to $500 million is for general aviation and commercial service airports that are not primary airports and $20 million is for competitive grants to airports participating in the contract tower program and contract tower cost share program. The bill directs the DOT Secretary to distribute the funding under existing formulas.
Airport Terminal Program. There is $5 billion appropriated for a new competitive grant program for airport terminal development projects. The bill directs the DOT Secretary to issue a notice of funding opportunity within 60 days after the President signs the bill into law. Of the funding, up to 55 percent is available for large hub airports, up to 20 percent is available for medium hub airports and no less than 10 percent is for non-hub and nonprimary airports. Terminal development includes multimodal projects and projects for on-airport rail access. The bill requires the Secretary to give consideration to projects that increase capacity and passenger access, replace aging infrastructure, expand access for people with disabilities, improve airport access to historically disadvantaged persons and improve energy efficiency,
Facilities and Equipment Funding. There is $5 billion appropriated for airport facilities and equipment.
Public Transportati
The bill appropriates $106.9 billion for Federal Transit Administration (FTA) programs over five years. This includes $69.9 billion in contract authority and $15 billion in general funds for the Capital Investment Grant Program; $750 million for the Washington Metropolitan Area Transit Authority (WMATA) and $21.25 billion in supplemental appropriations for specified transit programs. The bill reauthorize FTA programs but, unlike the highway and rail titles, includes very few substantive changes to existing programs.
Port Funding
• Port Infrastructure Development Program.
The bill appropriates $2.25 billion for the Port Infrastructure Development Program (PIDP), which is a competitive grant program that funds infrastructure projects at ports. Public ports and government entities are eligible applicants for these funds.
• Army Corps of Engineers. The bill appropriates $9.55 billion in supplemental funding for Army Corps of Engineers projects.
Environmental Streamlining
The bill includes several provisions intended to streamline project delivery and provide for an expedited process to advance projects through the environmental review process. The following provisions are worthy of note:
• Codification of One Federal Decision Policy. The bill codifies the One Federal Decision policy put into effect by the Trump administration.
The purpose of the policy is to facilitate more collaboration between the Lead Agency and Participating Agencies and provide guidelines and a schedule for undertaking environmental reviews of major projects. The bill requires DOT to publish a proposed rule and seek comment within a year after the law goes into effect. The bill also makes the FAST-41 permitting process permanent, sets a two-year goal for permitting covered projects and encourage federal agencies to use one document to track permitting decisions.
Innovative Financing for Transportation Projects
The bill reauthorizes and funds the Transportation Infrastructure Finance and Innovation Act (TIFIA) and the Railroad Rehabilitation Infrastructure Finance (RRIF) programs and makes changes to those programs. Through these programs, DOT provides low interest loans and loan guarantees with attractive repayment terms to government and private sector borrowers to undertake transportation infrastructure projects.
Research and Innovation
The bill makes available $735 million for the Highway Research and Development program; $550 million for the Technology and Innovation Deployment Program; $127.5 million for Training and Education; $550 million for Intelligent Transportation Systems; and $405 million for University Transportation Centers.
The bill also authorizes the establishment of an Advanced Research Projects Agency-Infrastructure (ARPA-I) program to fund research and development on advanced transportation infrastructure technologies through grants, contracts and cooperative agreements. ARPA-I is based on similar programs at the Department of Energy (e.g., ARPA-E) and Department of Defense (DARPA). No funding is appropriated for the program requiring that it be separately authorized.
Additionally, the bill directs the Secretaries of Transportation and Energy jointly to establish and lead a 25-member electric vehicle working group, comprising of federal and nonfederal stakeholders. The working group will make recommendations regarding the development, adoption and integration of electric vehicles into the transportation and energy systems across the country. The working group will also develop a series of reports to Congress on barriers to electric vehicle adoption and possible opportunities and solutions.
Energy Programs
The bill provides funding for grant and loan programs focused on grid reliability and security, renewable energy innovation and deployment and ensuring supply chains critical for energy innovation. We describe key programs below.
Grid Resilience
There is $27.65 billion appropriated for grid infrastructure, resiliency and reliability programs. The bill also authorizes funding for programs that will require future appropriations. Key programs include the following:
Grid Infrastructure Reliability Competitive Grants
Energy Infrastructure Federal Financial Assistance Program
Energy Improvement in Rural or Remote Areas
Transmission Facilitation Program
Supply Chains for Clean Energy Technologies
There is $7.712 billion available to establish supply chains for clean energy technologies. Key programs are as follows:
Battery Processing Grants
Battery Manufacturing and Recycling Grants
Battery Recycling Research, Development and Demonstration Grants
Electric Drive Vehicle Battery Recycling and Second-Life Applications Program
Advanced Energy Manufacturing and Recycling Grant Program
Critical Minerals Mining and Recycling Research and Development
Fuels andTechnology Infrastructure Investment There is $27.853 billion appropriated for fuels and technology infrastructure investment. Below is a summary of key programs.
Carbon Utilization Grant Program
Carbon Capture Technology Program
Carbon DioxideTransportation Infrastructure Finance and Innovation
Carbon Storage Validation and Testing
Regional Direct Air Capture Hubs
Hydrogen Research and Development Programs
Clean Hydrogen Electrolysis Program. The bill directs the Secretary to establish a new demonstration program to commercialize, improve the efficiency, increase the durability and reduce the cost of producing clean hydrogen using electrolyzers. The goal of the program is to reduce the cost of hydrogen produced using electrolyzers to less than $2 per kilogram of hydrogen by 2026. The bill authorizes and appropriates $1 billion to implement the program.
Nuclear Energy Infrastructure
• Civil Nuclear Credit Program. There is $6 billion authorized and appropriated for the Secretary to establish a civil nuclear credit program to evaluate nuclear reactors projected to cease operation due to economic factors and select certified nuclear reactors to be allocated credits.
Hydropower
The bill appropriates $125 million for fiscal year 2022 for hydroelectric production incentives as authorized in the Energy Policy Act of 2005.
Hydroelectric Efficiency Improvement Incentives. The bill appropriates $75 million for fiscal year 2022 for hydroelectric production incentives as authorized in the Energy Policy Act of 2005.
Miscellaneous
The bill authorizes and/or appropriates funding for a number of renewable energy demonstration projects authorized in prior laws, including the following:
Clean Energy Demonstration Program on Current and Former Mine Land. The bill establishes a program to demonstrate the viability of carrying out clean energy projects on current and former mine land. The bill authorizes the Secretary to award up to five demonstration projects. The Secretary is required to prioritize grants that have the greatest potential to create jobs and economic development in distressed areas and the greatest reduction in greenhouse gas emissions. The bill authorizes and appropriates $500 million for this program over five years.
Energy Storage Demonstration Pilot Grant Program. There is $355 million appropriated for this program authorized under the Energy Act of 2020.
Long-Duration Demonstration Initiative. There is $150 million appropriated for the Long-duration Demonstration Initiative and Joint Program authorized under the Energy Act of 2020.
Advanced Reactor Demonstration Program. There is $2.48 billion appropriated for the Advanced Reactor Demonstration Program authorized under the Energy Policy Act of 2005.
Carbon Capture Large-Scale Pilot Projects. There is $937 million appropriated to carry out the Carbon Capture Large-scale Pilot Projects authorized in the Energy Policy Act of 2005.
Carbon Capture Demonstration Projects Program. There is $2.5 billion appropriated for this program authorized in the Energy Policy Act of 2005.
Industrial Emission Demonstration Projects. There is $500 million appropriated for this program as authorized in the Energy Independence and Security Act of 2007.
Environmental Protection Agency
The bill appropriates $55 billion for various new water infrastructure programs. The following are some
of the key programs authorized and in some cases appropriated by the bill:
$15 billion to capitalize loan program and be used to subsidize lead service pipe replacement. Forty-nine percent of funds are for grants or forgivable loans to disadvantaged communities.
$4 billion to capitalize the loan program and be used to address emerging contaminants, including perfluoralkyl and polyfluoroalkyl (PFAS). Funds shall be provided to eligible applicants as forgivable loans or grants with no matching requirement.
Clean Water Revolving Loan Program
$11.713 billion to capitalize loan program for eligible purposes. Forty-nine percent of funds can go to grants or forgivable loans to disadvantaged communities.
$1 billion to capitalize loan program and be used to address emerging contaminants, including PFAS. Funds shall be for forgivable loans or grants with no matching requirement.
• Emerging Contaminants. The bill makes $5 billion available for a grants to states to address emerging contaminants in disadvantaged communities. There is no matching requirement for the funds. •Capitalization of State Drinking Water and Clean Water Revolving Loan programs. The bill provides distinct appropriations to capitalize the Drinking Water and Clean Water Revolving Loan programs for different purposes.
Drinking Water Revolving Loan Program • $11.713 billion to capitalize loan program for eligible purposes. Forty-nine percent of funds are for grants or forgivable loans to disadvantaged communSmall Publicly Owned Treatment Works Efficiency Grant Program. The bill requires the head of the Administrator to establish a program within 180 days of the bill’s enactment to make grants to owners of small publicly owned treatment works (that serve a population of not more than 10,000 or is in a disadvantaged community) or nonprofits for the replacement or repair of equipment that improves water or energy efficiency of small publicly owned treatment works as identified in an efficiency audit. The program is an authorization and subject to appropriation.
Connection to Publicly OwnedTreatment Works Grant Program. The bill authorizes $200 million and requires the Administrator to establish a competitive grant program to award grants to assist individuals in covering costs incurred by the individual in connecting the household to a publicly owned treatment works.
Water Infrastructure Finance and Innovation Act (WIFIA). The bill authorizes $250 million and appropriates $75 million for the WIFIA program through which EPA makes loans and loan guarantees to water infrastructure projects. The bill eliminates the requirement for an applicant to obtain final rating opinion letters from two rating agencies and instead requires only one opinion letter. Of the $75 million appropriated, $64 million is for loans and loan guarantees for safety projects to maintain, upgrade and repair dams identified in the Inventory of Dams with a primary owner type of state, local government, public utility or private.
Stormwater Control Infrastructure Project Grants. The bill establishes a new competitive grant program for state and local government, local, regional or other public entities that manage stormwater or wastewater resources or other water infrastructure carry out stormwater control infrastructure projects that incorporate new and emerging but proven stormwater control technologies. The Administrator is required to prioritize applications submitted on behalf of a community that has municipal combined storm and sanitary sewers in the collection system of the community or is a small, rural or disadvantaged community or will use not less than 15 percent of the grant to provide service to a small, rural or disadvantaged community. The bill authorizes $50 million (over five years) and is subject to appropriation. • Brownfields. $1.5 billion is appropriated for brownfields activities of which $1.2 billion is available for competitive grants for the remediation of contaminated properties.
Bureau of Reclamation
The bill authorizes $8.3 billion for the Bureau of Reclamation to fund western water infrastructure projects. The Bureau of Reclamation has the authority to fund projects in Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington and Wyoming. Funding authorizations and appropriations include:
Water Storage, Groundwater Storage and Conveyance Projects. $1.15 billion is authorized and appropriated for grants of which $100 million is for small surface water and groundwater storage projects. This program funds feasibility studies and construction projects for large-scale projects that Congress authorized in prior law or this bill. The bill also requires the Bureau of Reclamation to establish a competitive grant program for small water storage and groundwater storage projects. Projects in the water reclamation states and Alaska and Hawaii are eligible. Eligible projects must have water storage capacity of not less than 2,000 acre-feet and not more than 30,000 acre-feet and increase surface water or groundwater storage or convey water directly or indirectly to or from surface water or groundwater storage. The bill directs the Secretary of Interior to issue guidelines for feasibility studies within 60 days of enactment of the bill into law. The Secretary is required to send feasibility studies to Congress. Once a project sponsor completes a feasibility study, it can submit an application for construction funding to the Secretary. The maximum federal share is 25 percent of the total project cost or $30 million, whichever is less.
Water Recycling and Reuse Projects. The bill appropriates $450 million for a competitive grant program for large-scale water recycling and reuse projects. Eligible applicants are state and local governments, Indian tribes, water districts, wastewater districts and other organizations with water or power delivery authority. Eligible projects are those that (1) reclaim and reuse municipal, industrial, domestic or agricultural wastewater; or (2) impaired groundwater or surface water; and have a total cost of $500 million or more. The Secretary is required to consider a number of factors in making awards, including, among other criteria, water supply benefits to drought- stricken states. The bill directs the Bureau to prioritize projects that are more likely to provide a more reliable water supply; are likely to increase water management flexibility; are regional; have multiple stakeholders; or provide multiple benefits. The federal share for projects is 25 percent. The Secretary is required to issue guidance on implementing the program within one year of enactment of the bill into law.
Dam Safety Program. The bill authorizes $500 million for the dam safety program authorized in accordance with the Reclamation Safety of Dams Act of 1978.
WaterSMART Grants. The bill appropriates an additional $400 million for WaterSmart grants of which $100 million is for projects that improve the condition of a natural feature or nature-based feature.
Multi-Benefit Projects to Improve Watershed Health. The bill appropriates $100 million for a new competitive grant program to design, implement and monitor conservation outcomes of habitat restoration projects that improve watershed health in a river basin adversely affected by a Bureau of Reclamation water project. Funding is capped at 50 percent of project costs. Eligible applicants include a state, tribal or local government, an organization with power or water delivery authority, a regional authority or nonprofit conservation organization.
• Federal Assistance for Groundwater Recharge, Aquifer Storage and Water Substitution Projects. The bill authorizes the Bureau of Reclamation to provide technical and financial assistance for groundwater recharge projects, aquifer storage and recovery projects, or water source substitution for aquifer protection projects. Projects that havea total estimated cost of $500 million or more must be authorized for construction by an act of Congress.
Broadband
The Senate-approved version of the bipartisan infrastructure bill includes approximately $65
billion to improve and expand the nation’s broadband infrastructure and make broadband more affordable for low-income Americans. Most of the money will be made available through grants to states for qualifying infrastructure, mapping and adoption projects.
Cybersecurity
The bill provides approximately $1.9 billion in funding for protecting critical infrastructure from cyberattacks. The funds are intended to help federal, state and local governments secure their information systems and systems operated on their behalf against cyber threats; secure critical infrastructure and utilities; and support private and public entities in the aftermath of cyberattacks. The bill also establishes a federal cyber office, the Office of the National Cyber Director, and empowers the U.S. Department of Homeland Security (DHS) Secretary to declare a significant cyber incident.
Local-level Security
The largest portion of cybersecurity funding in the bill is the $1 billion appropriated for protecting state, local, tribal and territorial entities from cyberattacks. This funding is focused on entities, which typically lack the technical resources of the federal government and large corporations and are more likely to be vulnerable to cyber intrusions. This includes the following program: • State and Local Cybersecurity Improvement Grant Program. One billion dollars has been allocated over four years for state, local, tribal and territorial entities to strengthen the cybersecurity programs protecting energy grids, schools, hospitals and other vital services. To be eligible, such entities must submit an application to the DHS Secretary that includes a detailed Cybersecurity Plan describing how they will manage their information systems and enhance cybersecurity preparedness. The funds are available until expended, and will be dispersed by DHS as follows: $200 million for 2022, $400 million for 2023, $300 million for 2024 and $100 million for 2025. This program will be administered by Federal Emergency Management Agency (FEMA) in consultation with the Cybersecurity and Infrastructure Security Agency (CISA), and will be used to implement cybersecurity plans and address imminent cybersecurity threats.
Public-Private Coordination and Research
Another significant portion of the bill targeting cybersecurity is the establishment of a $100 million fund to support coordination between public and private entities during cyber incidents. DHS and CISA will have a leading role and have been granted greater authority, such as the ability of the DHS Secretary to declare a “significant incident” (pursuant to Section 2233 of the Homeland Security Act of 2002) and disburse emergency funds, along with more resources for cross-sector risk management. The bill also appropriates an additional $157.5 million to DHS for research and testing involving cybersecurity risk and vulnerabilities. Programs under this initiative include:
Cybersecurity Response and Recovery Act (Fund). The bill incorporates provisions of this act, enabling the DHS Secretary to declare a significant incident-defined as an attack on a critical U.S. organization, public or private, which would impact national security, economic security, public health or government operations. This act also appropriates $100 million to be disbursed at a $20 million annual rate for five years for a fund to be used by DHS to support entities impacted by such cyber incidents. CISA will provide direct support to the affected public or private entities during response and recovery. Remaining unused funds will be available until expended, with the program ending on September 30, 2028.
Grant to CISA. A $35 million one-time investment is appropriated for DHS’s CISA organization to establish a capability to oversee and support cross-sector government critical infrastructure and manage risk in coordination with public and private stakeholders.
Grant to DHS Science and Technology Directorate. This bill appropriates $157.5 million to the DHS Science and Technology Directorate for Research and Development. Allocated in $31.5 million increments over five years, these funds will support research on cybersecurity risk assessments and vulnerability testing, along with capabilities such as electromagnetic pulse and geo- magnetic disturbance resilience.
New Federal Cyber Office Created
A first-of-its-kind, National Cyber Office has been established by the bill to address the federal government response to cybersecurity issues and resiliency matters. The program provisions are as follows:
Funding for White House National Cyber Office. $21 million is appropriated for the Office of the National Cyber Director, available until September 30, 2022. National Cyber Director Chris Inglis was sworn in as the nation’s first National Cyber Director on July 14, 2021. The office has a temporary budget of $250,000 provided by the White House.
Grid Security
The bill also includes various measures to examine and improve the resiliency of the energy grid in the event of cyberattacks. A $250 million grant is included for rural and municipal utilities in order to address the preparedness of more vulnerable communities. It also appropriates $350 million for grid security to test responses and develop better cybersecurity programs. Principal programs include:
• Rural and Municipal Cybersecurity Grant. $250 million is authorized to the Department of Energy (DOE) to establish a grant for rural and municipal communities that lack resources to maintain their cybersecurity systems and to better address cybersecurity threats. DOE will also be required to report to Congress on ways to improve and update electricity distribution systems. • Grid Testing, Research and Enhancement. This bill appropriates $350 million for improving the cybersecurity posture of the energy grid. $50 million of allocation will be set aside for testing emergency response preparedness. Another $50 million will be applied to cybersecurity assessments to identify the critical components that pose the most risk to electric, gas and oil operations and measures to protect such components during a cyberattack. The remaining $250 million is appropriated to research, develop and demonstrate cybersecurity applications that can improve energy grid security.
Buy America and Buy American Domestic Content Requirements
Buy America Requirements
The bill requires that all iron, steel, manufactured products and construction materials used in infrastructure projects that receive financial assistance (through grants or loans) are produced in the United States. While the bill states that Buy America requirements must be interpreted consistent with the U.S. government’s obligations under international treaties, such obligations do not typically affect the applicability of domestic content requirements to grants and loans.
While certain federal financial assistance programs, including for transportation and water infrastructure, are already subject to Buy America laws and regulations, the Infrastructure Investment and Jobs Act (IIJA) would make Buy America requirements applicable to all infrastructure programs funded under the Act. This includes structures, facilities and equipment for (1) roads, highways and bridges; (2) public transportation; (3) dams, ports, harbors and other maritime facilities; (4) intercity passenger and freight railroads; (5) freight and intermodal facilities; (6) airports; (7) water systems, including drinking water and wastewater systems; (8) electrical transmission facilities and systems; (9) utilities; (10) broadband infrastructure; and (11) buildings and real property.
Within 180 days of enactment of the bill, federal agencies must ensure that no federal funds are obligated for a project unless all of the iron, steel, manufactured products and construction materials used in the project are produced in the United States.
Moratorium on HHS Implementation of the “Rebate Rule”
Sec. 60501. Moratorium on Implementation of Rule Relating to Eliminating the Anti-Kickback Statute Safe Harbor Protection for Prescription Drug Rebates.
A delay of the so-called “rebate rule” until January 1, 2026, provides for a $50.8 billion offset to the new spending.2 The rule, finalized by the Department of Health and Human Services on November 30, 2020, would revise the discount safe harbor to the Anti- Kickback Statute to eliminate any protections that arguably existed for the rebate paid by pharmaceutical manufacturers to pharmacy benefit managers (PBMs) and health plans.3 It also created a new safe harbor to protect drug manufacturer discounts that were passed on to the patient at the point of sale. The goals of the regulation are three-fold: (1) to increase transparency around the role of rebates in the drug supply chain; (2) to lower beneficiary cost-sharing at the pharmacy counter; and (3) to remove the perverse incentives in the current rebate system that reward manufacturers for increasing the list prices of their drugs, and encourage PBMs and plans to promote drugs based on clinical value (as opposed to rebate value). The new safe harbors protecting point of sale discounts and
fair market value PBM fees took effect on January 29, 2021. The removal of protections for rebates was initially due to take effect January 1, 2022, but a lawsuit filed by the PBM industry prompted a delay until January 1, 2023. The CBO determined back in May 2019 that the rebate rule would increase direct spending by about $177 billion over 10 years.4 Underlying this determination were a number of assumptions. First, CBO assumed that pharmaceutical manufacturers would withhold some of the savings they previously offered plans in the form of rebates. Second, CBO assumed that without this rebate revenue that plans will have to increase federally-subsidized premiums, thereby increasing government spending. Third, CBO assumed that drug manufacturers would not lower their list prices as a result of the rule (i.e., assumed that the rebate rule would not achieve one of its primary purposes). CBO appears to have maintained these assumptions in its scoring of the infrastructure package, notwithstanding the HHS Secretary’s statement at the final rule stage that he did not expect the rebate rule to increase federal spending, patient out-of-pocket costs or Part D premiums.
The moratorium extends through January 1, 2026, meaning that HHS could implement the rule at that time. However, there would remain roughly $120 billion in untapped savings that could be achieved by a permanent moratorium, meaning it could very well be used as an offset to a future spending package.
The Recovering Excessive Funds for Unused and Needless Drugs (REFUND) Act
Bipartisan legislation introduced by Senators Rob Portman (R-OH) and Dick Durbin (D-IL), The Recovering Excessive Funds for Unused and Needless Drugs (REFUND) Act, was included as a pay-for in the bipartisan infrastructure package. The provision is estimated to save $3 billion from reducing Medicare spending on unused medication from overly large, single-use vials. Specifically, the provision requires the HHS Secretary to aggregate the totally discarded amount of Part B medications each quarter. The Average Sales Price (ASP) will be used to calculate the total cost of the discarded medications, and drug manufacturers will be required to provide a rebate to HHS for 100 percent of the amount of excess medication, recorded by health providers, above a 10 percent low-volume threshold. A civil monetary penalty will incur if a timely rebate is not submitted. This policy will impact pharmaceutical companies with commonly prescribed injectable drugs.
Revenue Measures
Included in the legislation are revenue provisions which the Joint Committee on Taxation (JCT) estimated would raise just over $51 billion over ten years while the Congressional Budget Office estimated the legislation would add $256 billion to projected deficits over that period. Below is a summary of the provisions in Division H of the legislation and their revenue effects.
Title I – Highway Trust Fund
• Extension of Highway Trust Fund Expenditure Authority (all below sunset 9/30/26). – Includes the extension of Highway Trust Fund, extension of the Sport Fish Restoration and Boating Trust Fund, and the extension of the Leaking Underground Storage Tank Trust. • Extension of Highway-Related Taxes (sunset 9/30/28).
• Further Additional Transfers to Trust Fund. – Transfers from the General Fund $90 billion to the Highway account in the Highway Trust Fund and $28 billion to the Mass Transit Account in the Highway Trust Fund. JCT scored the provisions in Title I as having no revenue effect.
Title II – Chemical Superfund
• Extension and Modification of Certain Superfund Taxes – extends certain Superfund excise taxes through December 31, 2031, and modifies the amount of tax applicable to certain chemicals.
JCT estimates Title II will raise $14.45 billion over 10-years.
Title III – Customs User Fees
• Extension of Customs User Fees. CBO estimated Title III would cost $6.2 billion over 10-years.
Title IV – Bond Provisions
Private Activity Bonds for Qualified Broadband Projects. JCT estimates this provision will cost $566 million over 10-years.
Carbon Dioxide Capture Facilities. JCT estimates this provision will cost $116 million over 10-years.
Increase in National Limitation Amount for Qualified Highway or Surface Freight Transportation Facilities. JCT estimates this provision will cost $516 million over 10-years. JCT estimates Title IV will raise $1.198 billion over 10-years.
Title V – Relief for Taxpayers Affected by Disasters or Others Critical Events
• Modification of Automatic Extension of Certain Deadlines in the Case of Taxpayers Affected by Federally Declared Disasters. • Modifications of Rules for Postponing Certain Acts by Reasons of Service in Combat Zone or Contingency Operation. • Tolling of Time for Filing a Petition with the Tax Court. • Authority to Postpone Certain Tax Deadlines by Reason of Significant Fires.
Title VI – Other Provisions
Modification of Tax Treatment of Contributions to the Capital of a Corporation – modifies the contribution-to-capital rules to apply to regulated public utilities (water and sewer services). JCT estimates this provision will cost $1.3 billion over 10-years.
Extension of Interest Rate Stabilization or “pension smoothing” – amends section 430(h)(2)(C)(iv) of the IRC with respect to certain pension plans. JCT estimates this provision will raise $2.9 billion over 10-years.
Enhancement of Information Reporting for Brokers and Digital Asset – will require additional reporting of digital assets. JCT estimates this provision will raise $28 billion over 10-years.
Termination of Employee Retention Credit for Employers Subject to Closure Due to COVID-19 – will terminate the credit early by moving the end date from January 1, 2022, to October 1, 2021. JCT estimates this provision will raise $8.2 billion over 10-years.
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