U.S. Department of Transportation Federal Highway Administration

MEMORANDUM

This is in response to your inquiry of whether "the convict labor prohibition applies to all Federal-aid highways or just the NHS (Federal-aid system)?" I apologize for the delay in formally responding. As I mentioned in my 5/8 e-mail, I thought I had responded (at least orally) before to Gerry. In an event, I'm writing this memo since I could not find anything in writing and, while I believe my previous advice was that the convict labor prohibition applied to all Federal-aid highways, I did not recall the reasoning that led to that conclusion.

For reasons to follow, the answer to your question is "yes". The prohibition applies to all "Federal-aid highways" within the meaning of 23 U.S.C. 101.

Background:

As you noted in your February 21 e-mail, my January 21, 1992 (misdated as 1991), memo to David Ortez, HRC-09, subject: "Use of Convict Labor on Federally-Aided Highway Construction Projects", left unresolved the issue of whether the convict labor prohibition applied beyond the National Highway System.

As you also noted, in Region 8's May 9, 1996, memo, subject: "Applicability of Convict Labor Prohibition Transportation Enhancement Projects", the Regional Administrator determined that the convict labor prohibition applied "to projects located on a Federal-aid highway."

Discussion:

Section 114(b)(1) of title 23, United States Code (USC) provides in part:

Convict labor shall not be used in construction of highways or portion of highways located on a Federal-aid highway system unless it is labor performed by convicts who are on parole, supervised released or probation. (Emphasis added.)

Prior to the ISTEA of 1991, the "Federal-aid highway system [Federal-aid system]" was defined to mean "the primary system, the urban system, the secondary system, and the Interstate System" (23 U.S.C. 101, 103a). Section 1006 (a) of ISTEA eliminated 23 U.S.C. 103(a),(b), and replaced them with new subsections (a) and (b). New subsection "(a)" provides:

In General.-- For purposes of this title, the Federal-aid Systems are the Interstate and the National Highway System. (Emphasis added.)

There are two rules of statutory construction that apply to this matter: (1) we must interpret a statute based upon its plain meaning unless it is ambiguous and (2) a statute must be read as a whole. While the above new section 103 is plain, there is an obvious ambiguity when that provision is read in conjunction with other title 23 provisions. The ambiguity is caused by the fact while the Federal-aid primary, secondary and urban systems were eliminated by section 1006 of the ISTEA, conforming amendments were made to 23 U.S.C. 103, but not to the above quoted convict labor language of 23 U.S.C. 114(b) and some other title 23 provisions.

In my view, Congress (which passed its own bill, not the administration's) simply failed to make conforming changes to certain substantive provisions of title 23, such as section 114. (We either failed to catch the omissions in time or cause the Congress to effectuate the changes.) After ISTEA became law, FHWA/USDOT made attempts to have technically amendments made to correct the law regarding the systems designations. However, the technical corrections, to a great extent, were not made.

The question thus is whether the fact that Congress did not make the technical changes mean that it wanted to limit the application of the convict labor prohibition to the new "Federal-aid systems" -- the Interstate and the National Highway Systems (23 U.S.C. 103 (a),(b)) (the National Highway System, 23 U.S.C. 103(b)(2).

I believe the answer is no for two reasons. First, there is no indication on the face of ISTEA that Congress intended to change the scope of any of the social economic provisions of title 23, only that it was (in this matter) restructuring the Federal-aid program. For example, Congress did not change the scope of another social economic provision -- Davis Bacon (section 113). In section 1006(g) of ISTEA, Congress conformed the Davis Bacon provision by specifically deleting "systems, the primary and secondary, as well as their extension in urban areas, and the Interstate System," and inserting in their place "highways" so that the provision applies to all "Federal-aid highways." I suspect that had section 114 contained those specific system categories, the law drafters would have caught the section and a similar change would have been made to it.

Second, the legislative history of the convict labor provision reflect that Congress wanted broad application.

The origin of the 1958 codification of the section 114 convict labor provision was the the annual appropriation acts and regulations of the Agriculture and Commerce Departments. Legislative history maintained by our HCC-10 Office indicates the prohibition was applicable to "Federal-aid highway projects" in general. The legislative history of the 1957 Commerce Appropriation Act provided:

General provisions - Bureau of Public Roads: None of the money appropriated for the work of the Bureau of Public Roads during the current fiscal year shall be paid to any State on account of any project on which convict labor shall be employed, but this provision shall not apply to labor performed by convicts on parole or probation.

The 1958 codification provided:

Sec. 114. Construction

(b) Convict labor shall not be used in such construction unless it is labor performed by convicts who are on parole or probation.

Sometime later, the term "Federal-aid systems" was added to cover the aforementioned systems. What is significant is that the term covered all federal-aid highways, from the most major (Interstate) to the most minor (secondary). The restructuring of the federal-aid highway program did not really eliminate any Federal-aid highways for funding; it only renamed and recategorized them.

At least two technical amendment bills were proposed to fix ISTEA (H.R. 3276 and H.R. 5753, 102nd Cong. (1992) and H.R. 3276, 103rd Cong. (1993)). The former in "Sec. 109. Construction:

Section 114 of title 23, United States Code, is amended-

(1) in subsection (a) by striking 'highways or portions of highways located on a Federal-aid system' and inserting 'Federal-aid highway or portion thereof'; and

(2) in subsection (b)(1) striking 'highways or portions of highways located on a Federal-aid system' and inserting 'a Federal-aid highway or portion thereof'.

Lack of enactment of the technical amendment billsprobablyy had more to do with Congress' need to process more pressing substantive legislation than a conscious determination to limit the scope of provisions such as section 114. In fact, the technical amendment bill submittal by the Committee on Public Works and Transportation in House of Representatives reflected an awareness that there was a need make a technical fix to change "Federal-aid system" to "Federal-aid highways" in section 114.

Thus, notwithstanding the fact that technically the appropriate changes were not made to section 114, Congress intended that the prohibition continued to be applied to all federal-aid highway projects in which federal assistance was provided. Any contrary interpretation of section 114, would mean that STP projects and other Federal-aid highway projects that were not NHS/Interstate projects would not be subject to the convict labor provision. That would be contrary to the original intent of the statute as represented by ARTBA to Congress in hearings on the Federal-aid Highway Act of 1982:

In its final consideration of S.2315, ARTBA urges the subcommitte to include clarifying language to reinforce the existing prohibition of the use of convict labor in Federal-aid highway construction. *** We support the original intent of the statute that the Federal-aid highway program should utilize private enterprise to the fullest extent feasible. (Emphasis added.)

Statement of James A. Caywood, Chairman, American Road and Transportation Builders Association before the Committee on Environment and Public Works, S.2315, page 24-25.

Finally, a copy of this memorandum is being supplied to Patty Doersch of HCC-10, with a request that an attempt be made to fix the section 114 in the next reauthorization.