Federal Highway Assistance to U.S. Territories: Legislative/Funding History and Reauthorization Options

CRS Report for Congress
Received through t he CRS W e b
Federal Highw ay Assistance
t o U.S. T e rrit o ries:
Legislative/Funding History
and Reauthorization Options
Upda ted J uly 15, 2003
RobertS.Kirk
Specialist in Transportation
Resources, Sc ience, and Industry Division

Congressional Research Service ˜ The Library of Congress

Federal Highway Assistance to U.S. Territories:
Legislative/Funding History and Reauthorization
Options
Summary
The United S tates Territories --American Samoa, Guam , Northern M arian a
Is lands, and the U. S . Virgi n Islands--all receive federal funding for t heir roads and
high ways . The Territories’ t re a t m e n t under t he Federal-Aid Highway Program
(FAHP ), however, d i ffers si gn i fi cant l y from t hat o f t he 50 st at es and t he Di st ri ct of
Columbia. P rior to 1970 most of the road cons truction and maintenance activity was
financed and carried out by the t err itorial governments. In 1970, Co n gress
es tablished t he Territorial High way P rogram (THP) i n t he Federal-Aid Highway Act
of 1970 (P.L. 91-605). The Act authoriz ed the Department of Transportation (DOT)
t o assi st each of t h e t hree t erri t o ri es, t he Vi rgi n Is l ands, Guam , and Am eri can S am o a
(the Northern Mariana Islands were added t o t he program i n 1978), i n a program for
the construction and improvement of a s ys tem of arterial highways t o be des ignated
by each t erri t o ry’s Governor. DOT was al s o d i rect ed t o provi de t echni cal assi st ance
t o each t erri t o ry t o assi st i n t h e creat i o n o f an appropri at e agency t o adm i n i s t er t he
program.
During t h e m o re t han 3 0 years t he program h as ex isted t he THP’s enacting
language (23 U.S.C. 215) has b asically remained the s ame but the l evel of financing
varied with each reauthoriz ation. Program funding varied from a low o f $4.5 million
annually, i n FY1970-FY1973 to a high of $36.2 million i n FY2003. Some funding
from o ther program s ources has also gone to the t erri t o ri es. T he Em ergency R el i ef
Program, the High P riority Project Program, and certain safety programs have
provided funding for t erritorial high ways over t he years.
The arguments generally made in support o f federal aid t o t he territories,
including high way aid, are usually framed i n t erms of the t ransportation and
development n eeds o f t he territories and t he benefits the t erri t o r i e s provide to the
United S tates. The arguments against ex p a nded t erritorial eligibility under federal-
ai d h ighway programs are framed b y t he territories ’ ex emption from t he tax es t hat
support t he high way account of the Highway Trust Fund (HTF), the implications of
the t erritories limited l and ar ea, and t heir non-state s tatus.
As reau t h o rization of t he Transportation Equity Act for the 21^st Century
(TEA-21) (P.L. 105-178), C ongress may address a number o f options concerning
federal h ighway funding for t he territories. The overall issue for the t erritories is the
appropriate ex tent of thei r p articipation i n t he FAHP. The options range from
elimination of t he THP t o ex panding territorial participation i n FAHP programs to
equal t hat of t he stat es . Elimination o f t he THP appears unlikel y given the federal
commitments t o economic development o f t he territories. On t he other h and, the fact
that the t erritories do not pay t he tax es t ha t p rovide revenue to the HTF will probably
precl ude them from full participation i n HTF programs. The Bush Administration
proposal, t he Safe, Accountable, Flex i ble, and Efficient Transpo r t ation Equity Act
(SAFETEA)(H.R. 2088), would m ake a number o f changes in the THP and retain its
authorization at t he TEA21 annual l evel of $36.4 million. This report will be
updated as warranted by events.

Contents
Background ..................................................1
Territorial HighwayProgram (THP) ...............................2
Founding Legi slation .......................................2
Federal-Aid Highway Acts of 1973 (P.L. 93-87) and 1976
(P.L. 94-280) .........................................3
Surface Transportation Assistance Act o f 1978 (STAA78)
(P.L. 95-599) .........................................3
Surface Transportation Assistance Act o f 1982 (STAA82)
(P.L. 97-424) .........................................3
S u rface Transport at i o n and Uni form R el ocat i o n Assi st ance Act o f
1987 (STURAA) (P.L. 100-17) ...........................3
In termodal S urface Transportatio n E fficiency Act o f 1991 (ISTEA)
(P.L. 102-240) ........................................3
Transportation Equity Act for the Twenty First Century (TEA-21)
(P.L. 105-178) ........................................4
THP Funding History ...........................................4
Non-THP Highway Funding for t he Territories .......................6
EmergencyRelief ..........................................6
HighPriorityProjects.......................................6
SafetyPrograms ...........................................6
CongressionalIssues andOptions .................................7
Pro .....................................................7
Con .....................................................8
TEA-21ReauthorizationOptions .............................8
Ex panding the Territories ’ Eligibility to Other FAHP Programs .....9
Changi ng the Funding of the THP .............................9
The Bush Administration R eauthoriz ation P roposal: t he Safe,
Accountable, Flex i ble, and Efficient Transportation Equity
Act o f 2003 (SAFETEA) (H.R. 2088) ..........................9

Federal Highway Assistance to U .S.
Territories: Legislative/Funding History and
Reauthorization Options
The United S tates Territories --American Samoa, Guam , Northern M ariana
Is lands, and the U. S . Virgi n Islands--all receive federal funding for t heir roads and
high ways .¹ The T erritories’ t reatment under t he Federal-Aid Highway Program
(FAHP ), however, d i ffers si gn i fi cant l y from t hat o f t he 50 st at es and t he Di st ri ct of
Columbia. After a b rief background discussion this report ex amines the l egislative
and p rogram hi st ory o f federal -ai d hi gh way assi st ance t o t h e t erri t o ri es. It t hen
discusses t he funding history o f federal hi gh way assistance to the t erritories since
1970. Fi nally the repo rt reviews the overall argu ments for and against federal
assi st ance a n d s et s fort h rel at ed i ssues and opt i ons whi ch m ay em erge duri n g t he²
upcoming reauthorization of t he surface transportation program s.
Background
Prior t o 1970 most road construction and maintenance was financed and carried
out by the t erritorial governments. Lo cally levied fuel tax es s upported road p rojects.
The m ost s ignificant federal involvement in road construction i n t he territories was
limited t o t he construction of military roads (es p e ci ally significant for Guam ) and
provision of disaster relief. During the 1960s, rapid growth in population and motor
vehicle u se led t o i ncreasing t raffic congest i o n whi ch i n t u r n l ed t o i nt erest i n
est abl i s hi ng a federal l y fi nanced t erri t o ri al road program . The Federal Ai d H i ghway
Act o f 1968 ( P .L. 90-495) directed the Dep artment of Transportation (DOT) t o carry
out a h ighway study of Guam, American Samoa, and t he Virgin Is lands.
The report, Territorial Highway Study: Guam, American Samoa, Virgin Islands,
released J anuary 7, 1970, revealed that “con centrations of people and motor v ehicles
within the compact areas of these i sland t e rritories produce l arge volumes of traffic
compelled t o m ove over s ubstandard high ways at slower speeds and at greater haz ard
than drivers o rdinarily encounter in the s tates. Traffic growth i s curren t l y s e v eral
times m ore rapid than the nat ional average.” The s tudy, however, recommended
against any new federal high way grant programs for t he three t erritories. Instead, t he
report recommended t hat t h e territorial governments s hould t hemselves finance an

¹ Guam, t he Virgin Islands, and American Samoa, are organized unincorporated territories
of the United States. The Northern Mariana Island s h a s commonwealth status. In t his
memorandum, t he four are collectively r eferred t o as “the t erritories.”
² T he current authorization of surface transportation progr ams under t h e T r ansportation
Equity Act f or the 21^st Century ( P.L. 105-178) ends with the c lose of FY2003, September

30,2003.

ex panded h ighway development p rogram by ra ising t he territorial gasoline t ax rates
by five cents. It recommende d t h a t a d d itional s tudies be conducted over t he
following years i n ord er to develop a su itable h ighway improvement program for
each t erri t o ry, b ased on i t s i ndi vi dual n eeds. The report al s o recom m ended t hat DOT
provi de t echni cal gu i d ance for each t erri t o r i a l governm ent .³ Part of the report
authors’ reluctance to recommend spending sign ificant amounts o f federal funds on
territorial roads grew out of the constrai ned fiscal environment of t he time. The most
si gn i fi cant rest rai nt , however, h ad t o do with the n ature o f t he financing o f t he federal
high way t rust fund (HTF) t hat s upports spending on highways in the United S tates.
The HTF is supported b y ex cise t ax revenues (mostly from ex cise t ax es on gasoline
and diesel fuel) paid by highway users in the s tates. The t erritories , however, do not
pay t hese federal t ax es and t herefore do not provide revenues t o t he high way t rust
fund.⁴
Ter r i tor i al Hi ghw ay Pr ogr am (THP)
Founding Legislation . Despite the DOT recommendation against the
establishment o f a federally financed high way p r o gr a m for t he territories, t h e F e d e r a l -
Aid Highway Act o f 1970 (FAHA70)(P. L. 91-605), s ection 112, established t he⁵
Territorial High way P rogram(THP ). The Act aut hori z ed DOT t o assi st each of t h e
three t erritories (the Virgin Is lands, Guam, and American Samoa) in a program for
the construction and improvement of a s ys tem of arterial highways and inter-island
connectors (envisioned as road links from art erial h ighways t o airports or seaports)
t o be desi gn at ed by each t erri t o ry’s Gover n o r . DOT was al s o d i rect ed t o provi de
t echni cal assi st ance t o each t erri t o ry t o assi st i n t h e creat i o n o f an appropri at e agency⁶
to administer t he program. Provisions of Title 23 applicable to Federal-ai d primary
high way funds (other than formula p rovi sions) applied t o funds authoriz ed to carry
o u t t h e THP. No funds so authoriz ed were to be used for m aintenance of t h e
highway system (i.e. the funds were to be used for building and improving roads
only). FAHA’70 authoriz ed $2 million annually for Guam a n d the Virgi n Islands
and $500,000 annually for American Samoa for fiscal years 1971 through 1973.
Federal assi st ance was grant ed t o t h e t erritories based o n a feder a l c o n t ribution o f

70% of total p roject cost.

³ U.S. Departme nt of T r ansportation. Territorial Highway Study : Guam, American Samoa,
Virgin Islands. Senate Document No. 91-62. Washington, G.P.O., 1970. 116 p.
⁴ In large part, the t erritories are exempt from t hese taxes f or philosophical reasons. Since
the t erritories do not have full voting r epresent ation i n Congress, taxing the t erritories would
be imposing “taxation without representation.” T he absence of federal t axation, however,
is also seen a s an incentive f or economic development i n t he territories, whose per capita
incomes are significantly lower t han t he average f or the states.
⁵ 23 U.S.C. 215. T he Federal Highway Administr ation, Office of Program Administration
publication A Guide to Federal-Aid Programs and Projects (Publication No. FHWA-IF-99-

006) provides a c oncise f act sheet on T HP on pages 99-101.

⁶ T he House version of the bill had proposed a progr am for t he V i rgin Is lands only ( See t he
Congressional Record for November 25, 1970 page H10782, H10793). T he Senate proposal
provided for i nclusion of the V irgi n Islands, Guam, and A me r i c a n Samoa ( See
Congressional Record, September 30, 1970, page S16759).

Federal-Aid Highw ay Ac ts of 1973 (P .L. 93-8 7 ) a n d 1976 (P .L. 94-
280). Thes e authorization act s changed little in the THP other t han t he authorization
levels. The 1973 Act authorized $5 million f or the Virgi n Islands, $2 million for
Guam, and $1 million for Am er i can Samoa, annually for FY1974-FY1976. The
1 9 7 6 Act provided $1.25 million each for t he Virgin Is lands and Gu a m a n d
$250,000 for Ameri can Samoa for the 1976 speci al fi scal quart er, ending Sept 31,
1976. The Act then authorized $5 million annually for both t he Virgin Is lands and
Guam and $ 1 million for American Samoa, for FY1977 and FY1978.
Surface Transporta tion Assistance Ac t of 1978 (S TAA78) (P .L. 95-
599). STAA78 m ade t wo s i gn i f i c a n t changes to THP. Fi rst, the b ill added t he
Northern Mariana Islands to the THP and provided t he Is lands with $1 million
annually for t he life o f t he authoriz ation, FY1979-FY1982. Second, the Act raised
the federal contribution under THP from 70% to 100%. The Virgin Is lands, Guam,
and American Samoa annual authoriz ati ons were continued for the life o f t he
authorization at t he $5 million, $5 million, and $1 million l evel s respectivel y.
Surface Transporta tion Assistance Ac t of 1982 (S TAA82) (P .L. 97-
424). STAA82 m ade a m ajor change in the funding for THP. The Act authoriz ed
that the four territories be treat ed together as a s tate for Federal -Aid Primary (FAP)
funds. This meant t hat t he territori es got at l east ½ % of FAP funds, i n contract
authority, from the highway t rust fund, each year of t h e aut hori z at i on. Thi s al so
made THP funds subject to reduction under t he obligation limitation.⁷
The Formula Controversy. The apportionment for the t erritories wa s
allocated to the i ndividual t erritories unde r a f o r m u l a t hat was based: 1/3 o n u rban
population greater than 5000, 1/3 o n rural population, 1/6 o n public road milage, and
1/ 6 o n area. Accordi n g t o FHW A, several t erri t o ri es cont est ed t he fi gu res b ased on
population. In September 1983, FHW A decided t o i nfer congressional i ntent from
the funding set forth in STAA78 (i.e. $1 million for American Samoa, $5 million for
Guam , $5 million for the Virgi n Islands, and $1 million for the Northern M arianas)
an d d e r i v e r atios b ased on this division of funds. C onsequently, from FY1984
through FY1992, THP funds were divided among the t erritories as follows: 1 /12 t o
American Samoa, 5/12 to the Virgi n Islands, 5/12 t o Guam, and 1/12 t o t he Northern
MarianaIslands.
Surface Transporta ti on and Uniform Re location Assistance Ac t of
1987 (STURAA) (P.L. 100-17). STURAA ex tended t he authoriz ations set forth
i n S T AA82. The T HP cont i nued t o recei ve ½ % of each year’s federal -ai d p ri m ary
funding under contract authority and t he federal s hare continued at 100%.
Inte rmodal S urface Transporta tion Efficiency Ac t of 1991 (I S T EA)
(P.L. 102-240). IS TEA m a d e n o ch an ges t o s tatutory language of the THP (23

⁷ T he obligation limitation i s a restriction or ceiling on t he amount of federal assistance that
may be obligated (i.e., promised by the f eder al government) during a specified time period,
u s u a l l y a f iscal year. T his does not effect the a pportionment or a llocation of f unds but
controls their r ate of use. See FHWA. Financing Federal-Aid Highwa y s . Washington,
FHWA, 1999. p. 19-23.

U.S.C. 215) b u t d i d change t he source of funding. The Act d efined the four
territories as a s tate under t he National H ighway System (NHS) P r o gr a m and s et
aside 1 % o f NHS funds for t he territories.
Formula Cont r o v e rsy: the S econd Round. According t o FHW A, in
1992 the agency reviewed the 1-5-5-1 allocation, at the request of one of the
t erri t o ri es. T he agency concl uded t hat A m eri can S am o a and t h e N ort h ern M ari ana
Is lands were not getting t heir fair share b ased on road mileage, area, population, or
any combination o f t hese factors. FHW A developed and analyz ed over t wenty
possible f o r mulas b ased on census i nformation and 1990 highway s tatistics.
Begi nning in 1993 the administrative allocation was cha n ge d t o a new 1 -4-4-1
form ul a. Thi s rai s ed t h e rat i o recei ved b y A m eri ca n S a m o a and t he Nort hern
Mari ana Isl ands t o 1/ 10 and reduced t h e rat i o recei ved b y t he Vi r g i n Is l a nds and
Guamto4/10.
IS TEA requi red each t erri t o ry t o cl assi fy t h ei r h i ghways. S i nce t hen, t h e
t erri t o ri es have each est abl i s hed, wi t h FHW A approval , a com bi nat i o n o f art eri al and
col l ect or hi gh ways and i n t e r - i sl and connect ors. C al l ed t he Federal -Ai d T erri t o ri al
High way S ys tem, these routes are eligible for Federal-aid funds under THP.
Transportation Equity Ac t for the Tw e nty First C e ntury (TEA-
21)(P.L. 105-178). TEA-21 changed the s et-aside for T HP from 1 % o f NHS funds
to a s et amount of $36.4 million p er fiscal year. Duri n g t he debate on TEA-21 t he
House voted to continue the 1 % s et-aside from NHS, but the S enate voted not to fund
the THP. The $36.4 million s et-aside was agreed to in conference (H. R ept.105-550).
Because the funds are s ubject to the annual obligation limitation, only t he amount of
the $36.4 million for which obligation authority is made available m ay be distributed
to the t erritories .⁸ TEA-21 also ex panded project el i gi bility to incl ude any project
el i gi b l e for assi st ance un d er t he S u rface Transport at i o n P rogram , as wel l as any
a i r p o r t o r s eaport i n t he four territories . FHW A continues t o d ivide t hese fund s
accordi n g t o t he 1-4-4-1 adm i n i s t rat i v e form u l a.
THP Fundi ng Hi stor y
Federal funding of transportation p rojects under t he THP h as changed over t he
years i n acco r d ance wi t h t h e rel evant p rovi si ons of t h e s urface t ransport at i o n
authoriz ation acts d iscussed i n t he previous s e c t ion. Table 1 sets forth t he actual
amounts d istributed to the t erritories unde r t he THP. Other t han t he founding year,
the years which initiated s ignificant THP funding increases were FY1974, FY1977,
and FY1992. In FY1974, funding for American Samoa doubled and funding for t he
Virgin Is lands more than doubled. Guam’s funding was i ncreased to $5 million for
FY1977 which b rought Guam into parity with the Virgi n Islands. This rough parity
continues to this day. The drop in funding in FY1983 reflects the shift to ½ % of
federal aid primary contract authority an d also t he impact of THP b eing made subject
to obligation limitat i on. The n ex t m ajor increase i n funding occurred during
FY1992-FY1993 under ISTEA. By FY1993 the funding for American Samoa and

⁸ According t o T EA-21 s ection 1102 (f), the r emai ning contract authority is distributed to
thestates.

the Northern M arianas had more than tripled (due in part to the change i n t he
distribution formula in 1993, mentioned earlier). Funding for Guam and the Virgi n
Is lands more than doubled. Under TEA-21 funding for THP has remained at roughly
theISTEAlevel.
Table 1: T erritorial Highw ay Program: Funding FY1971-FY2002
(Current$)
Northern
American Virgin Ma ria na
FY Samoa G uam Islands Islands Totals
¹⁹⁷¹^500,000^2,000,000^2,000,000^N/A⁴^,500,000
¹⁹⁷²^500,000^2,000,000^2,000,000^N/A⁴^,500,000
¹⁹⁷³^500,000^2,000,000^2,000,000^N/A⁴^,500,000
¹⁹⁷⁴^1,000,000^2,000,000^5,000,000^N/A⁸^,000,000
¹⁹⁷⁵^1,000,000^2,000,000^5,000,000^N/A⁸^,000,000
¹⁹⁷⁶^1,000,000^2,000,000^5,000,000^N/A⁸^,000,000
¹⁹⁷⁷^1,000,000^5,000,000^5,000,000^N/A^11,000,000
¹⁹⁷⁸^1,000,000^5,000,000^5,000,000^N/A^11,000,000
¹⁹⁷⁹^1,000,000^5,000,000^5,000,000^1,000,000^12,000,000
¹⁹⁸⁰^1,000,000^5,000,000^5,000,000^1,000,000^12,000,000
¹⁹⁸¹^1,000,000^5,000,000^5,000,000^1,000,000^12,000,000
¹⁹⁸²^1,000,000^5,000,000^5,000,000^1,000,000^12,000,000
¹⁹⁸³^883,876^4,020,553^4,609,282^883,132^10,396,843
¹⁹⁸⁴^862,000^4,310,000^4,310,000^862,000^10,344,000
¹⁹⁸⁵^944,000^4,720,000^4,720,000^944,000^11,328,000
¹⁹⁸⁶^962,000^4,812,000^4,812,000^962,000^11,548,000
¹⁹⁸⁷^945,000^4,723,000^4,723,000^945,000^11,336,000
¹⁹⁸⁸^945,000^4,723,000^4,723,000^945,000^11,336,000
¹⁹⁸⁹^945,000^4,723,000^4,723,000^945,000^11,336,000
¹⁹⁹⁰^945,000^4,723,000^4,723,000^945,000^11,336,000
¹⁹⁹¹^939,000^4,697,000^4,697,000^939,000^11,272,000
¹⁹⁹²^2,364,344^11,821,722^13,568,478^2,364,345^30,118,889
¹⁹⁹³^3,392,120^13,568,478^13,568,479^3,392,120^33,921,197
¹⁹⁹⁴^3,374,305^13,497,218^13,497,218^3,374,305^33,743,046
¹⁹⁹⁵^3,365,397^13,461,588^13,461,589^3,365,397^33,653,971
¹⁹⁹⁶^2,939,018^11,756,074^11,756,074^2,939,018^29,390,184
¹⁹⁹⁷^3,321,487^13,285,948^13,285,948^3,321,487^33,214,870
¹⁹⁹⁸^3,243,240^12,972,960^12,972,960^3,243,240^32,432,400
¹⁹⁹⁹^3,214,120^12,856,480^12,856,480^3,214,120^32,141,200
²⁰⁰⁰^3,170,440^12,681,760^12,681,760^3,170,440^31,704,400
²⁰⁰¹^3,192,521^12,770,084^12,270,084^3,192,521^31,425,210
²⁰⁰²^3,297,599^13,190,396^13,690,396^3,297,599^33,475,990
²⁰⁰³^3,616,340^14,465,360^14,465,360^3,616,340^36,163,400
^Sourc^e^:^FH^W^A^da^ta^.^D^oe^s^not^inc^l^ude^$1.75^m^illion^f^rom^F^Y¹⁹⁷⁶^s^p^e^cⁱ^a^l^fⁱ^s^c^a^l^qua^rte^r^.^F^Y²⁰⁰³
^fⁱ^g^u^r^e^s^b^a^s^e^d^on^y^e^a^r^tota^l^b^r^o^k^eⁿⁱ^nto¹^-⁴^-⁴^-¹^s^h^a^r^e^s^.^A^c^c^o^r^d^ing^t^o^F^H^W^A^,ⁱⁿ^FY²⁰⁰³^the^T^H^P^w^a^s^not^s^ubje^c^t
^to^the^oblig^a^tion^lim^ita^tion^l^op-of^f^.

Non-THP Hi ghw ay Fundi ng for t he Ter r i tor i es
The t erritories may receive high way funding from s ources other t han t he THP ,
incl uding the Emergency Relief P rogram , t he High Prio rity Project s P rogram , and
cert ai n hi gh way s afet y p rogram s. The t erri t o ri es are not , howe v er, el i gi b l e for
Federal Highway Administration discretionary programs. The eligibilit y for thes e
programs is limited by statute to the states and the District of C olumbia, usually with
P u ert o R i co as t h e onl y ex cept i on.
Emergency Relief. The l argest other s ource of federal h ighway funding is
t h e E m ergency R el i ef Federal -Ai d Hi gh way p rogram (ER ). T he t erri t o ri es are
subj ect t o st orm d am age and ot her n at ural di sast ers, and m ay request ER assi st ance
to restore d amaged roads t o t heir pre-disaster condition. From FY1990 to FY2000
the t erritories received $72.9 million i n ER funds, American Samoa received $22.9
million, Guam received $39.8 million, and t he Virgin Is lands received $10.2 million.
Hi gh Priority Projects. American Samoa and the Virgi n Islands have also
participat ed in the High P riority Project P rogram (HP P ) and i t s IS TEA predecessor,
the Demonstration, Priority, and Special In terest Projects P rogram. P rojects under
thes e program s are designat ed in the t ex t of t he authorizing l egislation. According
to FHWA, s ince O ctober 1991, a t otal of $48.6 million h as been authorized and⁹
$44.1 million h as been allocated for p rojects i n t hese same two t erritories.
S a fe ty P r ogra m s . Under chapter 4 (Highway S afet y) of Title 23 of the U.S.
C ode t h e t erri t o ri es are d efi n ed as “st at es” and t herefore recei ve S ect i o n 402 form ul a
grants each year and m ay apply f o r i n c e n tive grants under s ections 405 (occupant
pro t e c t i o n i n c e n t i v e g r a n t s ) , s e c t i o n 4 1 0 ( alcohol-impaired d rivi ng countermeasures),
section 411 (state high way s afety d ata improvements), and TEA-21 S ection 2003 (b)
(child passenger protection education grants). Under t hese sections t h e t erritories
together received $2.1 mill i o n for FY2000 and $2.3 million for FY2001.¹⁰ The
National Highway T r affic S afet y Administration (NHTSA) administers thes e
sections.
As mentioned earlier, the t erritories are not considered as states under FHW A
programs. This m akes them ineligible for FHW A s afety grants under s ections 157
(safet y i ncent i v e grant s for t h e u se of seat bel t s ) and 163 (safet y i ncent i v es t o prevent
operation o f m otor vehicles by intox i cated persons).
The t erritories participat e i n t he Motor C arrier Safety Assistance Program
(MC S AP ). MC S AP p rovides grants t o h elp t he territories enforce t heir truck and bus
safety regu lations. As o f FY2001, each of the t erritories bega n r ecei v i n g a fix ed
amount of $350,000 annually for M CSAP.

⁹ FHWA data.
¹⁰ NHT SA da t a .

Congr essi onal I ssues and O pti ons
The argum ent s for and agai nst federal -ai d hi gh way assi st ance t o t h e t erri t o ri es
have changed little since t he debate of the 1960s that culminated in the founding of
the THP. W ith the approaching reauthorization of TEA-21 t he overall arguments are
worth reviewing.¹¹
Pro. The arguments generally made in support o f federal aid t o t he territories,
including high way aid, are usually framed i n t erm s of the t ransportation and
development n eeds o f t he territories, t he benefits the t erritories provide to the United
States, and their limited enfranchisement. In general, population growth and an
i n crease i n t he num ber o f v ehi cl es o n t erri t o ri al roads h as i n creased t raffi c congest i o n
in all t he territories. Although s ignifi cant improvements h ave b een made under t he
THP, some territorial roads continue to be under stress from inadequate capacity
while other roads continue to be substandard and h az ardous. Because the t erritories
are all islands, m uch o f t he road construction i s m ore ex pensive than in the 50 U.S.
st at es. R em ot eness from s uppl i ers i s especi a lly a p roblem for t he P acific t erritories.
In addition, the t erritories are s ignificantly less well off t han t he stat es , have a l ower
per capita domestic product, and p ay high er prices for m any b asic goods. Advocates
of hi gh way assi st anc e t o t h e t erri t o ri es argu e t hat t he t erri t o ri es are not weal t h y
enough t o p rovide for t heir road infrastructure n eeds witho u t f e d e ral assistance.
Supporters also argu e t hat t he go a l of bringi ng the t erritories into economic parity
with the s tates i s an established princip l e o f t h e federal government.¹² Federal
high way a s s i stance is seen as falling under t his p rinciple. Advocates of assistance
also point out that all t he territories were ac quired for strategi c purposes and contend
that they continue to be of current or potential s trat egic value t o t he United S tates.
Three o f t he t erri t o ri es, G uam , Am er i c a n S a m o a, and t he Vi rgi n Is l ands are each
represented i n C ongress by a s ingl e non-voting representative i n t he U.S. House o f
R epresent at i v es.¹³ The C ommonwealt h o f t h e Northern M ariana Is lands has n o
congressi o n a l r e p resent at i v e. S o m e advocat es of assi st ance t o t h e t erri t o ri es see a
link bet ween t h i s l i mited representation and what they see as l ow levels of federal
assistance.

¹¹ T his pro/con discussion is an encapsulation of both published s ources and also discussions
with a variety of FHWA officials at both t he national and re gi o n a l l e vels. Many of the
arguments concerning the appro p r i a t e n ess of federal highway assistance mi rror t he
arguments concerning economi c a ssistance and compensation f or the r estricted s cope of
territories’ citizenship rights. See Overseas Territories and Commonwealths of t he United
States of A m e r i c a , b y Daniel H. MacMeekin. Internet l ocation:
[ h t t p : / / www.e u r i s l e s .c om/ t e xt e s / s t a t u t _ i l e s / Ame r i c a F R.ht m] ; Territorial Highway Study ;
U.S. Congress. House. Articles of Relations for U.S. Territories . Hearing, May 24, 1994.
Serial no. 103-90. 303 p.; see a lso t erritorial web s ites a nd the c ongressional web sites f or
the Congressional Representatives of the t erritories. T he U.S. Census Bu r e a u w e b s ite,
[ h t t p : / w w w.census.gov] , i ncludes brief histories of t he territories as well as detailed
demogr aphic and economic information.
¹² See M acMeeki n. Overseas Territories . p. 5-6; a lso P.L. 98-454 To Enhance t he Economic
Development of Guam, t he Virgin Islands, American Samoa, the Northern M ariana Islands,
and for other purposes.
¹³ T hese r epresentatives are only able t o vote i n committee.

Con. The m ai n obj ect i o n t o ful l o r ex p anded t erri t o ri al part i ci p at i o n i n federal -
aid h ighway program (FAHP) i s t hat t he territories do not pay t he tax es t hat s upport
the p rogram. T he FAHP is funded from t he high way account of the HTF. The HTF
is supported b y h ighway user tax es (mostly fuel tax es) paid for b y h ighway users i n
the 5 0 s tates. In addition, under TEA-21, each state’s p ercentage sh a r e o f t he
aggregat e s pendi ng on t h e “core” h i ghway program s i s adj u st ed every fi s cal year t o
ensure that each state’s s hare of the apporti onments for t hese programs is at least a
90.5% return on its estimated contributions to the h ighway account of the HTF. The
link t hat t his “minimum guarantee” makes b etween the amount of tax es p aid and the
federal assi st ance recei ved, accordi n g t o s om e, st rengt h ens t he argu m ent s t hat m ost
FAHP programs should b e restricted t o t he states whose u ser t ax es support t he HTF.
Opponents o f s pending HTF m oney o n t erritorial roads argue that th e t e r r i t o ries
should raise their o wn territorial fuel ta x es t o p rovide for t heir high way funding
needs. Their s mall siz e, both i n t erritory and population, compared with the s mallest
o f the states also forms the basis of arguments against ex panded p ro gram
participation for the t erritories. All four territories’ populations combined are l ess
than the population o f t he state with the l east population, W yoming, whose l and area
is much great er. Their combined land areas together are only 532 square miles l arger
than Rhode Is land, whose population i s m ore t h a n 2 ½ times as l arge. If t he
territories were allowed t o p articipat e i n all or most of FAHP programs, t hey would
qual i f y f o r t he vari ous program m i n i m u m s whi ch, because of t h e t erri t o ri es sm al l
siz e, would actually, s ome argue, b e ex cessively generous. The final a r g u m e n t i s
simply that the FAHP is based on t he assumption of a federal-stat e partnership that
is different than the federal relationship with the t erritories . From t his perspective,
federal highway assistance to the t erritori es should be acco mplished outside the
ex isting FAHP programs and s hould not draw from t he HTF for funding.
TEA-21 Reauthorization O ptions.
As the debate over the reauthori z at i o n o f federal surface t ransport at i o n p rogram s
continues, Congress may address a number of options conc e r n i n g federal h ighway
funding for t he territories.¹⁴ The overall issue for the t erritories is the appropriate
ex tent of thei r participation i n t he FAHP. Options range from elimination of t he THP
to ex panding territorial participation i n FAHP programs to equal t hat o f t he states.
Elimination o f t he THP i s u n l i k ely s ince the federal commitments t o economic
development o f t he territories woul d p robably b e s tr o n g e nough t o p revent
elimination of t he THP. On the other hand, the fact that the t erritories do not pay t he
tax es t hat p rovide revenue to the HTF will probably p reclude them from full
participation i n t he programs th at t h e HTF pays for. Any reauthorization debat e
concerni ng federal h i ghway assi st ance t o the t erritories will probably b e over m ore
modestchanges.
In a l egis l a t i ve sense, it is the t erritori es’ non-state s tatus t hat ex cludes t hem
from m ost federal high way p rograms. Because the d efinition o f a “state” i n Title 23
U.S.C. section 101 does not include the t erritories, t he only p rogra m s t h a t t he

¹⁴ T he T EA-21 a uthorization e nds with the c lose of the 2003 fiscal year, Sep t e mb e r 30,

2003.

territories are eligible for are programs whose l egislat i ve l anguage s peci fically
i n cl udes t hem o r d efi n es t h em as a s t at e fo r t he purposes of the p articular program.
Expanding the Territories’ Eligibility to O ther FAHP Programs. As
m ent i oned earl i er, because of t h e l i n k t he m i n i m u m guarant ee m ake s b e t w e e n a
state’s federal high way t ax revenues and the amount a s tate receives under t he core
high way p rograms, it is doubtful t hat t he territories will be granted p articipation i n
the core hi gh w ay programs beyond thei r ex i sting participation i n NHS. However,
territorial project s could b e m ad e eligible for o ther FAHP programs, referred t o as
the allocated or discretionary programs, t hat a r e u nder t he control o f t he FHW A.
Thes e program s are much s m aller t han t he main core highway program s and thei r
grants are com p e t e d f or on a p roject by project basis o r are design ated by
congressional earmarking. To make the t erritories eligible, C ongr e s s c o u ld pass
amending language that would d efine t he four territories collectively as a state under
one or more of the p ro gram sections in Title 23 U.S.C. Even if the t erritories are
made eligible for any of thes e program s, however, t here is no guarantee any grants
wi l l be awarded t o t erri t o ri al proj ect s.
Changing the Funding of the THP. As mentioned earlier, TEA-21
changed t he THP’s funding from 1 % o f National Highway System funding (set under
IS TEA) t o a fix ed annual amount of $36.4 million t hrough FY2003. This amount is
si gn i fi cant l y l o wer t han t he THP w oul d h ave recei ved h ad t h e p rogram ret ai n ed t h e

1% NHS set-aside t he program h ad under ISTEA. The issue o f restoring the 1 % s et-

as ide could be rai sed during t he reauthorization debat e. Another possibility would
be to define the four territories as a s tate for all o c a t i o n purposes under NHS. This
w o u l d q u a l i fy THP for the NHS minimum allocation equal t o ½% of NHS an d
Interstate Maintenance allocations combined. Another option would be t o argue for
a continued dollar a m o u n t s et-aside but at a h igher l evel, p erhaps one that would
more cl osel y approx imate the outcome of a 1% NHS set-as ide.
S i nce early 2001 the federal revenue outlook has b ecome increasi n gl y
const rai ned. Thi s m ay b e t he great est obst a c l e t o i n c reasi n g federal ai d t o t he
territories.
T h e B u s h Ad m i n i s t r a ti on Reauthor i z ati on P r oposal : t h e S a f e ,
Accountabl e , Fl exi bl e, a n d E f f i c i e n t Tr a nspor tati on Equi ty Ac t
of 2003 (SAFETEA) ( H.R. 2088)
SAFETEA, which was i ntroduced by request on May 14, 2003, would m ake a
number o f changes to the THP. S ection 1808 proposes a number o f changes to the
various parts of Title 23 of the U.S. C ode that are rel evant t o t he THP. Some of the
changes are t echni cal and can be seen as addi ng c l a r i t y t o t he st at ut e, whi l e ot her
changes h ave s i gni fi cant p rogram effect s. Overal l t he bi l l coul d b e s een as
broadening the project eligibility for THP road project s. It does t his s peci fying t he
eligibility of “collect or roads,”¹⁵ by allowing the S ecretary o f Transportation t o apply

¹⁵ Collector roads collect and disperse t raffic between the arterial highways (roads which
generally handle t he l o n g trips) and t he lower l evel roads ( local roads, streets and other
(continued...)

any Federal -Aid Highway eligibility provision to THP project s, and by allowing THP
participation i n ferry and ferry facility project s. The bill al so ends the ex i sting
prohibition on t olls on territorial roads. On the other h a n d t h e bill does add some
limitations incl uding dr opping the TEA21 eligibility language that made seaports and
ai rports eligible, as wel l as s peci fically prohibiting THP spending on local roads and
for routine m aintenance. Funding for THP is he l d at the annual TEA21 level o f
$36.4 million for the life of t he reauthorization and the feder al share i s m aintained
at 100%. T h e b i l l a l so requires each of the t erritories to nego tiate a n ew THP
agreem ent with the S ecret ary of Transportation within 12 months of enactment.

¹⁵ (...continued)
public paths or ways). See U.S. Federal Highway Admi nistration. Highway Statistics, 2001.
p. V -2. Although c ollector roads have been included i n t he T HP network, SAFET EA adds
the t erm t o t he eligibility language of the statute.