The first and most crucial step in financing the Federal-Aid Highway Program (FAHP) is development of authorizing legislation. An authorization is a statutory provision that establishes or continues a Federal agency, activity, or program, and can be for either a fixed or indefinite period of time. Authorizing legislation for highways began with the Federal-Aid Road Act of 1916 and the Federal Highway Act of 1921. These acts provided the foundation for the FAHP as it exists today. The FAHP has been continued or renewed through the passage of multi-year authorization acts ever since then. Since 1978, Congress has passed highway legislation as part of larger, more comprehensive, multi-year surface transportation acts.
Surface transportation acts can vary in their scope and duration. Most surface transportation acts are major multi-year bills, such as the Intermodal Surface Transportation Efficiency Act (ISTEA) and the Transportation Equity Act for the 21st Century (TEA-21)1, each of which covered a 6-year time span. However, a surface transportation act can also come in the form of a stop-gap funding bill, designed to extend the program and keep it operational while more comprehensive authorizing legislation is debated. After TEA-21 expired on September 30, 2003, an unprecedented total of 12 such short-term extensions, varying in duration from 2 days to 8 months, kept programs going for almost 2 years until Congress enacted the most recent multi-year reauthorization act for the FAHP, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) on August 10, 2005. The SAFETEA-LU includes eleven titles: I - Federal-aid Highways; II Highway Safety; III Public Transportation; IV Motor Carrier Safety; V Research; VI - Transportation Planning and Project Delivery; VII – Hazardous Materials Transportation; VIII - Transportation Discretionary Spending Guarantee; IX - Rail Transportation; X – Miscellaneous Provisions; and XI – Highway Reauthorization and Excise Tax Simplification.
The financing of other Federal programs may be much more dependent on a second legislative act, known as an appropriations act, than on authorizing legislation. Appropriations acts and their impact on the FAHP will be discussed in more detail in a later section. The remainder of this section is devoted to a general overview of the steps involved in developing an authorization act, and a more detailed description of the FAHP itself.
The Administration (executive branch) normally proposes legislation to reauthorize highway and other surface transportation programs. Although not required to by law, the Administration develops a legislative proposal in order to present its position on the future of surface transportation. The Department of Transportation (DOT) will prepare the proposed legislation, with affected operating administrations participating in the development. Operating administrations include the FHWA, the Federal Motor Carrier Safety Administration (FMCSA)2; the National Highway Traffic Safety Administration (NHTSA), the Pipeline and Hazardous Materials Safety Administration (PHMSA)3, the Research and Innovative Technology Administration (RITA)4, the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA). To ensure consistency with the Administration's policy, the Office of Management and Budget (OMB) reviews and approves the legislation prior to the Administration sending the bill to Congress.
The comprehensive Administration bill prepared by the DOT is introduced in Congress at the request of the Administration. Although the bill must be sponsored by at least one member of Congress in order to be introduced, this does not necessarily mean that the sponsor endorses all provisions in the proposed bill. Congress will consider the Administration bill in formulating its own legislation, and may incorporate entire provisions verbatim, but rarely enacts an entire Administration bill without change.
Committees. Because of the vast number of measures introduced in Congress and the wide array of subjects covered, Congress is broken up into committees, with each committee having jurisdiction over a specific area. These committees vary in size and each committee's title usually indicates the general scope of its jurisdiction. These committees conduct investigations, make studies, issue reports and recommendations, and review and prepare measures on their assigned subjects. Most committees also divide their work among several subcommittees with narrower focus and jurisdiction. This committee framework is designed to consolidate decisionmaking on broad public policy areas.5
Responsibility for developing surface transportation legislation rests with specific authorizing committees, and their appropriate subcommittees, in Congress. The Highways and Transit Subcommittee of the Committee on Transportation and Infrastructure in the House of Representatives, and the Subcommittee on Transportation and Infrastructure of the Committee on Environment and Public Works in the Senate have primary jurisdiction for a major part of the FAHP, including responsibility for drafting highway authorizing legislation. Furthermore, the jurisdiction of the House Transportation and Infrastructure Committee extends to mass transit and safety. In the Senate, however, the Commerce, Science, and Transportation Committee has jurisdiction over safety while the Banking, Housing, and Urban Affairs Committee has jurisdiction over mass transit concerns. Highway Trust Fund and other revenue matters fall under the purview of the House Ways and Means and the Senate Finance Committees. Thus, legislation involving surface transportation matters can occur simultaneously and independently in any of these committees in both the House and Senate.
Congress begins the authorization process by conducting hearings as a springboard for developing authorizing legislation, and normally holds such hearings on surface transportation about 9 months to a year before expiration of the current authorization act. The purpose of these congressional hearings is to give interested organizations, citizens, members of Congress, and the executive branch an opportunity to present their views on the future direction of Federal surface transportation programs.
Once the committee hearings are completed, the subcommittees begin preparation of draft surface transportation legislation, taking into consideration information obtained during the hearings. They may also include elements taken from proposed surface transportation bills submitted during the current session of Congress and referred to the full authorizing committees. Such bills may be proposed by several groups, including, as mentioned, by the Administration, as well as by members of Congress who have an interest in surface transportation, and by the chairmen or ranking minority members of full authorizing committees or subcommittees. Often, member-introduced bills concern only one facet of the program, such as safety initiatives or the bridge program. Bills proposed by committee leadership are usually comprehensive, and represent an attempt to reconcile competing views from several sources. Such bills commonly take on the name of their principal sponsor, frequently serve as the basis for additional committee hearings, and are primary documents in preparing draft legislation.
As the House and the Senate work independently on their separate bills, each body has its own schedule for hearings, committee meetings, and procedural votes. Although they may be developed concurrently, House and Senate surface transportation bills remain separate until brought together in Conference Committee, much later in the legislative process.
Congressional Procedures. Subcommittee members "mark up" (amend) the draft bill until a majority agree to submit the revised bill to the parent full committee which in turn holds its own mark up session. Entire new sections may be added, even to the point of preparing a completely different version, although this is uncommon. Once approved by a majority of the full committee, the bill is sent to other committees having jurisdiction over some aspect of the program (e.g., for Trust Fund matters, the House Ways and Means and Senate Finance committees would have jurisdiction). The bill is then "reported out" to the full chamber of its respective body of Congress.6 Accompanying each bill is a committee report that expands upon the legislative language in the bill and is used by the executive branch and the courts to determine congressional intent. There are separate committee reports for the Senate bill and the House bill.
The proposed House surface transportation bill is debated, amended, and voted upon on the floor of the House of Representatives. The Senate follows the same procedure for its bill. When the Senate and House pass their respective bills, a conference committee is formed to reconcile differences and arrive at a mutually acceptable compromise.
Upon agreement by the conference committee, a single bill with its attendant report is returned to each body of Congress for final passage. Conference bills must be voted on in their entirety exactly as presented by the conferees. When the conference bill has passed both the House and Senate, it is transmitted to the President for signature.
Figure 1 displays the typical process as described.
Federal-aid Highway Program (FAHP)
It is critical to understand the meaning of the word "program." First, "program" is used as an umbrella term referring to activities administered by the FHWA.7 When this report uses "program" in this all-encompassing sense, it will use the term "Federal-aid Highway Program." Second, "program" also refers to any one of the separately funded categories that make up the overall FAHP. For example, the Interstate Maintenance (IM) Program and the Surface Transportation Program (STP) each has its own specific and separate funding, described in law, and each is considered a program.
In addition to having its own distinct and separate funding, each program has associated with it certain activities for which that funding may be used. These are described in law and are referred to as eligible activities. These activities, often eligible under a number of programs, are not considered programs in the financial sense of the term as used in this report because the legislation does not single out these activities for specific funding.
When an authorization act establishes a program, it sets certain ground rules under which the program operates, including: the amount of funds available to the program for each fiscal year; a description of how those funds are to be distributed; the length of time during which the funds may be used, termed a period of availability; and a listing of eligible activities. These can be changed by subsequent authorization acts, as well as by other acts.
Program Changes. As pointed out earlier, authorization acts are the primary instruments used by Congress to shape and direct the FAHP. This is done by modifying existing programs, by adding or eliminating programs, and by changing requirements for programs. The following are examples of such actions in the SAFETEA-LU, but this list does not include all changes brought about by the act:
- Modifying an existing program. Under the SAFETEA-LU, the Highway Bridge Replacement and Rehabilitation Program (HBRRP) is broadened in scope to include systematic preventative maintenance, and freed from the requirement that bridges must be considered "significantly important."8 The Transportation, Community, and System Preservation Pilot Program (TCSP) is reauthorized in the SAFETEA-LU as a discretionary grant program, no longer a pilot, with a requirement that funds must be equitably distributed to a diversity of populations and geographic regions.9
- Adding or eliminating a program. The SAFETEA-LU created a new core program, the Highway Safety Improvement Program (HSIP), with requirements for strategic highway safety planning.10 Funded separately, the HSIP replaces the former highway safety infrastructure program funded by a STP set-aside. The Bridge Discretionary program, which funded high-cost bridge projects at the discretion of the Secretary, was terminated after fiscal year (FY) 2005.11
- Modifying requirements. SAFETEA-LU provisions strengthen program and project oversight and increase the accountability of the States in the project delivery process through a number of provisions, such as lowering the threshold defining major projects to $500 million, requiring major projects to have project management plans in addition to the previously required finance plans, and requiring finance plans for projects exceeding $100 million in total cost.12
In addition to changing program features, authorization acts often contain requirements for studies. Studies are largely the result of either an impasse regarding the best solution to a problem or a lack of sufficient information to formulate a policy. The SAFETEA-LU requires submission of a variety of reports covering specific studies, pilot projects, and other special projects. Most of these reports are completed by the departmental agencies with primary oversight over the areas in question.
SAFETEA-LU also called for the creation of the National Surface Transportation Policy and Revenue Study Commission, charged with examining not only the condition and future needs of the nation's surface transportation system, but also short and long-term alternatives to replace or supplement the fuel tax as the principal revenue source to support the Highway Trust Fund over the next 30 years. The Commission's report to Congress will inform the development of the next surface transportation reauthorization act.
Authorizations. The other major purpose of authorization acts is to provide funding for programs. These funds are called "authorizations," and are the upper limits of funding made available to a program. The SAFETEA-LU authorized a total of $244 billion for highways, highway safety and transit. Appendix B lists the highway programs authorized by the SAFETEA-LU and the amounts provided through FY 2009.
The remainder of this report explains how the FAHP authorizations are distributed, the requirements associated with their use, the controls placed on spending, and the role of the Highway Trust Fund in highway spending.
Title 23 U.S.C.
New surface transportation authorization acts amend Title 23 of the United States Code (U.S.C.). Title 23, U.S.C., is titled 'Highways' and includes most of the laws that govern the FAHP arranged systematically, or codified. Generally, Title 23, U.S.C., embodies those substantive provisions of highway law that Congress considers to be continuing and which need not be reenacted each time the FAHP is reauthorized. Each new surface transportation act specifies which sections of Title 23, U.S.C., are to be repealed, added, or amended.
Some provisions of surface transportation law are not incorporated into Title 23, U.S.C. Authorization amounts themselves are not usually codified. Examples of other provisions authorized by the SAFETEA-LU but not codified into Title 23, U.S.C. are the Transportation, Community, and System Preservation Program (Section 1117), Projects of National and Regional Significance (Section 1301), and the Safe Routes to School Program (Section 1404).