A pair of key Washington, D.C.-based organizations—the American Trucking Associations (ATA) and the U.S. Chamber of Commerce—gave positive feedback on a revised memo issued by the Federal Highway Administration’s (FHWA) framework focused on how states utilize funding from the Infrastructure Investment and Jobs Act (also known as the Bipartisan Infrastructure Law, or BIL).
In the memo, FHWA Administrator Shailen P. Bhatt explained that the memo describes an overarching framework of Administration priorities based on existing law to guide FHWA staff regarding the use of the infrastructure legislation.
This memo was preceded by one issued in December 2021 by the FHWA comprised of what the ATA said was a wish list of priorities for states as they spent IIJA funds, which it said were not aligned with the legislation’s intent by directing funds to highway maintenance and non-highway projects over investments in expanding highway capacity.
“The maintenance of existing roads and highways in a state of good repair is an important tool to ensure the effective use of Federal funding while also improving transportation safety, reducing surface transportation-related greenhouse gas emissions, delivering equitable transportation options and access, and accommodating new and emerging technologies by upgrading the nation’s infrastructure,” wrote Bhatt.
The memo explained that as directed by 23 U.S.C. 145, states determine which of their projects shall be federally financed by Federal-aid highway formula dollars, adding that different states have different needs when it comes to transportation assets that must be recognized and modernized, expanded and added, or retired, and replaced.
“FHWA recognizes and values the authority and role of the States in deciding how to prioritize the use of their Federal-aid highway dollars and will continue to administer funds and programs consistent with all requisite statutory requirements and considerations,” stated Bhatt.
And he added that States are ultimately responsible for deciding how their formula and allocated funding is prioritized, FHWA supports various goals, including:
ATA’s take: American Trucking Associations President and CEO Chris Spear said that the FHWA’s revised memo will help to reduce confusion and also spur what he called important investments in improving freight capacity.
“As I told Congress earlier this month, FHWA’s memo didn’t just run counter to what lawmakers intended with IIJA, it was causing significant confusion for states at a time when those states needed to be working closely with FHWA to make sure the record-setting investment is directed to where it can do the most good,” said Spear. “The IIJA was a good piece of bipartisan legislation and FHWA’s original memo was a misguided attempt to do an end-run around the priorities Congress set and it is a positive sign that DOT leadership has issued new guidance more in line with those priorities.”
And in a February 1 House Transportation and Infrastructure Committee hearing, Spear said that rather than having “really nice roads and bridges,” what is needed are truck lanes, parking, new bridges, and more capacity to move freight. The ATA also said that the new FHWA memo puts FHWA’s guidance in accord with the IIJA while also clarifying that states can invest in critical freight expansion projects.
U.S. Chamber feedback: “We commend Federal Highway Administration (FHWA) Administrator Bhatt for listening to the concerns of transportation stakeholders, including the U.S. Chamber and 17 other organizations that raised concerns in a January coalition letter, and revising the policy memo that created uncertainty among the transportation community and set a concerning precedent,” said U.S. Chamber of Commerce Vice President for Transportation, Infrastructure, and Supply Chain Policy John Drake, in a statement. “We thank Chairman Graves and Ranking Member Capito for working diligently to correct the original policy, helping ensure IIJA funding will continue to help stabilize and enhance every state’s long-term transportation improvement efforts.”
Addressing the January letter, Randy Mullett, principal of Mullett Strategies, told LM last month that
even though it isn’t specific about a particular item, it importantly reminds the FHWA that any significant programing or funding changes are required to use the formal rulemaking process.
“Any time you have such a significant piece of legislation containing directional shifts in policy or funding, it is vital for stakeholders to put a marker down with the administrative agency to protect affected parties from agency overreach bypassing the rulemaking process,” he said.
And two attorneys at Washington, D.C.-based Venable LLP—James H. Burnley IV, former U.S. Secretary of Transportation and one of the nation’s foremost authorities on transportation law and policy, and Fred Wagner, former chief counsel of the U.S. Federal Highway Administration, said that the policy was issued by FHWA without any opportunity for input by state and local governments, as well as the private sector.
“GAO…opined that the ‘policy’ meets the standards for rulemaking and, as a result, should have been published for comment,” they said. “Had it gone through the rulemaking process, that could have provided more clarity as to how the statutory language of the Bipartisan Infrastructure Law should be interpreted. The fundamental problem remains the same since the FHWA document was published in late 2021—confusion over how to reconcile statutory language and policy initiatives could result in significant delays in the expenditure of the new federal funds on certain projects.”