Safe, Accountable, Flexible, Efficient Transportation Equity Act--A Legacy for Users (SAFETEA-LU or SAFETEA): Selected Major Provisions
CRS Report for Congress
Safe, Accountable, Flexible, Efficient
Transportation Equity Act — A Legacy for Users
(SAFETEA-LU or SAFETEA):
Selected Major Provisions
October 18, 2005
John W. Fischer
Coordinator
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
Safe, Accountable, Flexible, Efficient Transportation
Equity Act — A Legacy for Users (SAFETEA-LU or
SAFETEA): Selected Major Provisions
Summary
On August 10, 2005, President Bush signed the Safe, Accountable, Flexible,
Efficient Transportation Equity Act - A Legacy for Users (SAFETEA-LU or
SAFETEA)(P.L. 109-59). This act reauthorizes federal surface transportation
programs through the end of FY2009. The reauthorization was long overdue, given
that the previous long term authorization, the Transportation Equity Act for the 21st
Century (TEA-21)(P.L. 105-206) expired on September 30, 2003.
The reauthorization debate was primarily characterized by two interrelated
issues, money and how that money would be distributed among the states. The 108th
Congress came close to a bill with a surface transportation Conference Committee
in place. In the end, however, conferees were unable to reach agreement either
among themselves or with the Bush Administration as to how large the six-year
reauthorization package would be in dollar terms. The Conference was also unable
to agree on a solution to the long standing donor-donee state funding distribution
question, with donor states insisting on a 95% return on fuel tax revenues and donee
states insisting that increased funding for donor states not come at their expense.
In the 109th Congress, the same issues threatened to undermine a Conference
Committee that began meeting in June 2005. This time, however, all parties found
ways in which to compromise. Most importantly, the Administration allowed total
funding in the bill to rise to $286.4 billion for the six-year authorization period (in
actuality the act provides $244.1 billion for the five years remaining before FY2009).
This increase allowed the conferees to ultimately guarantee all states an eventual 92%
rate of return, an improvement on the existing 90.5% rate, while at the same time
holding 27 states harmless (meaning they will not receive less actual money than they
have in the past). With these key compromises in place many of the objections to the
bill disappeared and the conference report was agreed to on July 29, 2005.
In addition to money issues, the act addressed a number of other issues. These
included the creation of a new consolidated safety program, enhanced environmental
streamlining regulations, changes in clean air conformity regulations, funding for
transit new starts, expanded reliance on innovative financing and tolls, and spending
on congressional high priority projects (earmarks).
This report will be updated as warranted by congressional actions.
CRS Highway, Highway Safety, and Transit Policy Staff
Area of ExpertiseNameCRSDivisionTelephone
Highway Program IssuesJohn FischerBob KirkRSIRSI7-77667-7769
Trust Fund IssuesJohn FischerBob KirkRSIRSI7-77667-7769
Donor/Donee & Formula IssuesBob KirkJohn FischerRSIRSI7-77697-7766
Highway, Railroad, & Truck SafetyRandy PetermanRSI7-3267
Auto and Traffic Safety (includingRandy PetermanRSI7-3267
NHTSA)
Intelligent Transportation Systems (ITS)Randy PetermanRSI7-3267
Transportation Enhancements & PlanningGlennon HarrisonRSI7-7783
(MPOs)
Transit Program IssuesRandy PetermanRSI7-3267
Intermodal/Freight IssuesJohn FrittelliRSI7-7033
CMAQLinda LutherRSI7-6852
Environmental Issues, includingLinda LutherRSI7-6852
streamlining, stormwater, and section 4f.
Conformity with the Clean Air ActJim McCarthyRSI7-7225
Recreational TrailsSandy JohnsonRSI7-7214
Transportation Infrastructure PolicyJohn FischerBob KirkRSIRSI7-77667-7769
Surface Transportation SecurityJohn FrittelliRSI7-7033
Highway and Transit Program DataJohn WilliamsonVanessa CieslakKSGKSG7-77257-8978
Division abbreviations: RSI = Resources, Science, and Industry Division, KSG =
Knowledge Services Group.
Contents
Major SAFETEA Provisions.........................................2
Authorization Period...........................................2
Surface Transportation Finance...................................2
Trust Fund Budgetary Treatment..................................3
Guaranteed Funding............................................4
Changes to Revenue Aligned Budget Authority (RABA)...............5
Donor-Donee State Remedies ........................................5
SAFETEA’s “Equity Bonus” Innovation........................7
Highway Program and Formula Changes...............................8
Apportioned Programs..........................................8
Apportioned Program Formula Changes........................8
New apportioned program formulas...........................9
Allocated (Discretionary) Programs..............................10
New Allocated Programs...................................10
Innovative Finance and Tolling......................................10
Innovative Finance Provisions...................................10
TIFIA ..................................................11
SIBs ...................................................11
Toll Provisions...............................................11
Interstate System Reconstruction and Rehabilitation Pilot Program..11
Other HOV Tolling Provisions (including hybrids)..............12
Private Activity Bonds.........................................13
Other Highway Provisions..........................................13
Appalachian Development Highway Program (ADHP)...............13
Earmarking ..................................................14
Above-the-Line/Below-the-Li ne .............................14
Transportation Enhancements (TE) Program.......................15
Transportation and Community and System Preservation (TCSP)
P rogram ................................................15
Pedestrian and Bicycle Mobility.................................16
Transit Reauthorization............................................18
New Programs...............................................18
Growing States Program and High-Density States Program........18
New Freedom Program....................................19
Alternative Transportation in Parks and Public Lands Program.....19
Small Transit Intensive Cities Formula Program.................19
Small Starts Program......................................20
New Apportionment Factors for the Formula Grants for Other
than Urbanized Areas Program..........................20
Passenger Rail and Rail Safety Provisions.............................20
Maglev .................................................20
Elimination of Rail-Highway Crossing Hazards in High-Speed
Rail Corridors.......................................20
Alaska Railroad..........................................21
Welded Rail and Tank Car Safety Improvements................21
Highway and Commercial Vehicle Safety Programs......................21
Infrastructure Safety, including the Highway Safety Improvement
Program (HSIP)..........................................21
Federal Traffic Safety Program and Associated State Grants.......22
Intelligent Transportation Systems (ITS)...........................23
Research and Development and Technology Deployment.................24
Freight Rail and Intermodal Provisions................................24
Railroad Rehabilitation and Improvement Financing Program (RRIF)
Loan Program Expansion..............................25
Rail Line Relocation......................................25
Rail Project Earmarks.....................................26
Study of Rail Transportation and Regulation...................26
Intermodal Freight Pilot Program................................26
Recreational Trails Program (RTP)...................................26
Funding/Formula .........................................26
Eligibility ...............................................27
Environmental Issues, including “Streamlining”.........................27
The CMAQ Program..........................................30
Conformity of Transportation Plans and State Implementation Plans (SIPs)...31
Appendix .......................................................33
List of Tables
Table 1: SAFETEA Guaranteed Obligations FY2005 FY2009...............5
Table 2. SAFETEA Authorization Levels, FY2005 - FY2009..............33
Safe, Accountable, Flexible, Efficient
Transportation Equity Act — A Legacy
for Users (SAFETEA-LU or SAFETEA):
Selected Major Provisions
Federal surface transportation programs are a major component of national
spending on transportation capital infrastructure. According to a Government
Accountability Office (GAO) report 46% of all U.S. highway capital spending in
FY2002 was attributable to federal funding. Likewise, it is the availability of federal
transit funding that has provided the possibility of bus and rail transit projects in
many communities during the last few decades.
Structurally, surface transportation legislation normally consists of multiple
separate legislative titles which can be viewed as the principal programs and their
funding mechanism; highways, highway safety, transit, motor carrier safety, research,
planning, hazardous materials transportation, rail, and finance. Additional titles are
sometimes included in reauthorization legislation, that are often unrelated to
transportation (as is the case of certain tax provisions in SAFETEA). It should be
pointed out that the term “program” has multiple meanings in a discussion of federal
surface transportation policy. The larger federal-aid highway program, for example,
consists of a number of separate programs, such as the surface transportation program
(STP). Funds in the various programs are distributed on the basis of formulas (known
as apportioned programs in highway parlance) and on a discretionary basis (also
referred to as the allocated programs in the highway program).
The majority of funding in the overall surface transportation bill, and the vast
majority of highway funding, goes to the so-called “core” highway programs.
SAFETEA increases the number of these core programs from five to six: interstate
maintenance (IM), national highway system (NHS); surface transportation program
(STP); bridge and bridge maintenance; congestion, mitigation, and air quality
(CMAQ); and the new highway safety improvement program (HSIP) are all
apportioned programs. A seventh program, called the equity bonus (EB)(which
replaced the TEA-21 minimum guarantee program), is sometimes also referred to as
a core program. Most remaining highway funding goes to the allocated programs,
such as federal lands highways, which are ostensibly under the control of the Federal
Highway Administration (FHWA), but in recent practice have been largely
earmarked during the annual appropriations process.
The structures of the highway safety, research, and transit programs also include
a mix of formula and discretionary programs. In the transit program, for example,
about half of all funding is distributed directly to transit operators by the urbanized
area formula program and the non-urbanized area formula program. Each of the
major programs also includes planning, environmental, and other elements that are
major subjects of discussion during reauthorization debates.
Major SAFETEA Provisions
Authorization Period
Federal highway, highway safety, and transit programs are subject to periodic
reauthorization. Prior to passage of SAFETEA, the most recent authorization was
the Transportation Equity Act for the 21st Century (TEA-21, P.L. 105-278), which
provided funds for the period FY1998 - FY2003. After October 1, 2003 all federal
surface transportation programs continued to operate on the basis of 11 short term
extension acts.
Although there have been numerous short term reauthorizations in the history
of these programs, there is a consensus in the surface transportation community that
long-term reauthorizations, such as that afforded by TEA-21, better accommodate the
long-term planning needs and construction horizons associated with the provision of
highway and transit infrastructure. Reauthorization by short-term extensions created
a great deal of uncertainty about the likelihood of future funding in the highway and
transit community. Highway and transit interests at the state and local level, and in
the private sector, have, therefore, welcomed passage of SAFETEA even though
delays in its passage have converted it from a six-year bill to a just over a four-year
bill expiring in FY2009.
Surface Transportation Finance
Federal funding for surface transportation is closely linked to the revenue stream
provided by the highway trust fund. The trust fund is in fact two separate accounts -
highways and mass transit. The primary revenue sources for these accounts are the
Although there are other sources of revenue for the trust fund, these fuel taxes
provide about 90% of the income to the funds. Of these amounts, the transit account
receives 2.86 cents per gallon and 0.1 cent per gallon is reserved for an unrelated
leaking underground storage tank (LUST) fund. Over the almost 50 year life of the
trust fund there have been several increases in the level of taxation. The last increase
in the fuel tax occurred in 1993 (all of these funds were not actually deposited into
the trust fund initially, but were deposited in the Treasury general funds for deficit
reduction purposes until FY1998).
For almost 50 years the trust fund has been a reliable source of funding for
surface transportation. In FY2004, for example, the highway account received tax
revenues of $31 billion, while the mass transit account received $5 billion. For most
of its history the trust funds have collected more than has been expended relative to
the size of the program defined by Congress. This situation has been changing in the
last few years. The FY2004 limitation on obligations was set at $33.6 billion and the
FHWA total appropriation was $34.5 billion, both amounts of which are higher than
the revenues collected for the fiscal year. For a number of reasons, however, the trust
fund’s unexpended balance remains substantial, but is declining. Because of this
trend there is some uncertainty at the moment about the long term outlook for the
financial health of the trust fund. This is in spite of the fact that the American Jobs
Creation Act of 2004 (P.L. 108-357), passed in the closing days of the 108th
Congress, provided the trust fund with additional future income by changing
elements of federal gasohol taxation. These changes could provide the trust fund
with an additional $4 billion per year starting in FY2005.
As mentioned earlier, both the House and Senate had passed reauthorization
legislation in the 2nd Session of the 108th Congress and a Conference Committee was
formed. The Conference Committee, Congressional Leadership, especially in the
House, and the Administration were unable to reach agreement about total program
funding for the next reauthorization period. This was largely because some Members
of Congress backed a level of project funding larger than the Bush Administration
was willing to support. Part of the Administration’s objection related to the above
debate about the future health of the trust funds vis-a-vis the Administration’s
adamant objection to raising fuel taxes either now or in the future. Some Members
of Congress, on the other hand, had identified a number of mechanisms, including
the now adopted gasohol changes, other tax changes, and rescissions that they felt
would support a larger program. The gasohol changes by themselves, however,
would not have been sufficient to fund the program size desired by many Members.
Conferee’s on SAFETEA considered a number of tax and other changes that
would increase revenues to the trust fund and/or offset additional highway and transit
spending. Several of these provisions are included in the finance title of the act. The
revenue increases in this title are viewed as quite modest and derive mostly from
cutting back on tax fraud and by transferring some Treasury general fund revenues
associated with transportation related activities to the trust fund. It was believed at
time of passage, that the changes identified in SAFETEA when combined with the
changes in gasohol legislation enacted in 2004, and enhanced by expected economic
growth, would be sufficient to finance the $286.4 billion program created by the act.1
(CRS contacts: John Fischer and Robert Kirk)
Trust Fund Budgetary Treatment
TEA-21 changed the way the highway trust fund relates to the Federal Unified
Budget in two ways: first by creating new budget categories and second by setting
statutory limitations on obligations. The act amended the Balanced Budget and
Emergency Deficit Control Act of 1985 to create two new budget categories:
highway and mass transit. The act further amended the budget process by setting the
limitation on obligations for each fiscal year from FY1999 to FY2003 in authorizing
rather then appropriations legislation. In addition, TEA-21 provided a mechanism,
Revenue Aligned Budget Authority (RABA), to adjust these amounts in the highway
1 Recent events such as Hurricanes Katrina and Rita, the high price of oil, and what some
believe may be a period of economic uncertainty are already raising questions about these
forecasts. It is now expected by some that new estimates by the Department of the Treasury
and others will show a trust fund revenue stream unable to fund all of the programs in
SAFETEA prior to FY2009.
account, but not the transit account, so as to correspond with increased or decreased
receipts in highway generated revenues. The provision also adjusts the highway
program authorization level to correspond with this change. It should be pointed out,
all of the above notwithstanding, that annual revenues and expenditures affecting the
balances in the trust fund accounts remain part of the overall annual federal deficit
calculation.
The net effect of the changes was to set a predetermined level of funding for
core highway and transit programs, referred to in TEA-21 as a discretionary spending
guarantee. These categories are separated from the rest of the discretionary budget
in a way that prevents the use of funds assigned to these categories for any other
purpose. These so called “firewalls” were viewed, in the TEA-21 context, as
guaranteed and/or minimum levels of funding for highway and transit programs.
Additional funds above the firewall level could be made available for highway and
transit programs through the annual appropriations process, but for the most part this
did not occur except in FY2003. SAFETEA has retained this budget format largely
unchanged.
Guaranteed Funding
Most of the debate about SAFETEA was about money and its distribution. At
the end of the day, SAFETEA provides quite a bit of additional money, $286.4
billion in guaranteed spending authority, for the six-year period FY2004 - FY2009.
This is a significant increase over the level in TEA-21 which provided $218 billion
over the six-year period FY1998 - 2003. A direct comparison between the two bills,
however, is difficult for a number of reasons that are beyond the scope this report.
Suffice it to say that SAFETEA represents a significant funding increase for all
federal surface transportation programs, though not as much of an increase as many
of the legislation’s original authors had hoped for.
In reality, SAFETEA is a five-year bill, FY2004 is history and, at time of
passage, only two months remained in FY2005. A more useful representation of
SAFETEA, therefore, is that it provides just over $244 billion in guaranteed spending
authority between FY2005 - FY2009. As Table 1 shows, all major programs
affected by the legislation receive significant new funding (the exempt obligation
category is provided for equity bonus and emergency funding purposes and does not
reflect a program per see). Total annual spending increases occur in each year and
total spending in FY2009 is almost 23% higher than spending in FY2005. A
summary of funding for major programs and activities can be found at the end of this
report in Appendix 1. Even more detailed programmatic information, to the
subprogram level, can be found at [http://www.fhwa.dot.gov/safetealu
/fundtables.htm]
The House version of what became SAFETEA contained a so-called “re-
opener” provision that would have required that Congress reconsider the total amount
of funding available at a specified later date. The Bush Administration strongly
objected to this provision and it was not included in the final act.
Table 1: SAFETEA Guaranteed Obligations FY2005 FY2009
($ billions)
FY2005FY2006FY2007FY2008FY2009Total 5-
years
Hi gh wa y 34.422 36.032 38.244 39.585 41.200 189.484
Obligation
Limitation
Exempt Highway0.7390.7390.7390.7390.7393.695
Obligations
Highway Safety0.7421.1891.2171.2391.2705.656
and Motor Carrier
Safety Obligations
Mass Transit7.6468.6238.9759.73110.33845.313
Obligations
Totals 43.549 46.583 49.175 51.294 53.547 244.148
Source: Transportation Weekly. August 4, 2005. p. 5.
Changes to Revenue Aligned Budget Authority (RABA)
As mentioned earlier, TEA-21 created a spending mechanism intended to adjust
annual highway program obligations to reflect changes in revenue in the highway
trust fund. The expectation was that this would provide for increases in obligational
authority, although the law did allow for reductions in funding if trust fund revenues
decreased. In its first three years, RABA provided significant additional spending
authority. In FY2003, however, the RABA computation called for a program
reduction. Congress choose, through the appropriations process, not to reduce
spending and instead increased it.
As a result of this experience there was a push to change the way RABA was
calculated to make revenue swings less dramatic, especially in the negative direction.
SAFETEA changes how RABA is calculated primarily by using a two year
calculation rather than the single year called for in TEA-21. In addition, it puts off
RABA calculations until FY2007 and reduces the likelihood of spending reductions
by requiring that no reductions occur so long as the unexpended balance in the
highway trust fund exceeds $6 billion.
Donor-Donee State Remedies
Historically, transportation policy battle lines have often formed along regional
rather than partisan alignments. The regional character of transportation policy is
evident in the debate over the so-called “equity” of distribution of federal highway
aid among the states. Since 1982 Congress has included legislative provisions in
every surface transportation reauthorization act to remedy these perceived funding
distribution concerns through a variety of minimum guarantee provisions. For many
years, some states (mostly Southern as well as some Mid-Western and Western
States) have complained that they receive significantly less federal highway aid than
their highway users pay in federal highway taxes to the highway trust fund (HTF).
These states, referred to as donor states, have pressed for legislative remedies that
would assure them a higher share rate-of-return, most recently 95%, on their tax
payments to the Treasury. Donee states, states that receive more federal highway aid
than they pay in federal highway taxes, have not opposed equity provisions per se but
have opposed any reduction in their existing shares.
The basic donor state argument is a relatively straightforward call for equity or
fairness. Donor state advocates generally contend that for too many years they have
been subsidizing the repair and improvement of donee state infrastructure, especially
the older highway infrastructure in the Northeast. Most also argue that they are more
road dependent and do not benefit from federal transit spending to the same degree
as some donee states. Southern and western donor states also argue that they are fast
growth areas, relative to most donee states, and that, consequently, their needs are as
great or greater. Finally, they argue that with the completion of the Interstate
Highway System there is no valid rationale for the donor-donee disparity. Donee state
advocates argue that fairness should not be separated from needs. They assert that
the age of their highway infrastructure, especially in the Northeast, the high cost of
working on heavily congested urban roads, and the limited financial resources in
large sparsely populated western states justify their donee status. They also argue
that there are needs that are inherently federal rather than state and that a national
highway network cannot be based solely on state or regional boundaries. Donee
states also argue that Midwestern and southern states spend less local and state
money on highways than donee states, and chide them for pleading for federal funds
when they are unwilling to ante up their own resources.
In a broader sense, the debate over equity remedies has implications for a
number of overarching issues. An equity guarantee of a 95% rate of return could, in
the minds of some, leave little room for addressing other or additional transportation
needs that are uniquely federal, such as the Federal Lands Highway program. Also,
the role of the federal government vis-a-vis the states comes into question as the
minimum guarantee approaches 100%. At what point does the federal role become
so limited that converting the Federal aid highway program to a revenue sharing or
a block grant program make sense? Another controversial issue is whether the MG
should be broadened, as some states have proposed, to include Federal Transit
Administration programs.
The 109th Congress faced a difficult policy problem in resolving the seemingly
contradictory goals of meeting donor state demands for a higher rate-of-return and
donee state demands to be held harmless at a time when the HTF revenue base was
expected to be insufficient to easily fund both goals. Part of the problem was that a
bill that simply reduced the shares of donee states to increase the shares of donor
states would have had difficulty overcoming a filibuster by donee states in the Senate.
To construct a minimum guarantee (MG) mechanism that could overcome this
obstacle, previous reauthorization bills had included “hold harmless” provisions that
maintained certain base shares for all states. This meant that part of the process of
bringing donor state shares up to the MG percentage required increasing the overall
federal highway program size, usually by a significant amount (since donee state
funding could not be reduced). In other words, providing equity remedies that keep
both donor and donee states reasonably content has been accomplished by giving
more money to all states but giving even more to donor states to bring their shares
up to a designated per cent share, 90.5% during TEA21. Providing equity in this way
has been very expensive in dollar terms, the minimum guarantee program under
TEA21, in fact, became the largest highway program. In the end, the constraints of
limited funding availability and the practical politics of getting the surface
transportation legislation through both houses of Congress, resulted in a modest and
gradual increase in the guaranteed rate-of-return to the states.
SAFETEA’s “Equity Bonus” Innovation. SAFETEA replaces the entire
TEA-21 MG program with an “Equity Bonus” program (EB). Basically, the
individual program formulas will determine the initial apportionments and then the
equity bonus funding will be added to these levels to bring donor states up to their
guaranteed rate-of-return levels. The act directs the Secretary of Transportation to
allocate to the states for each of the fiscal years 2005 through 2009 sufficient funds
to ensure that each state receives at least a return of 90.5% for FY2005-2006, 91.5%
for FY2007, and 92% for FY2008-2009, on their estimated payments to the highway
account of the HTF. The act keeps nearly all the programs subject to MG under
TEA-21 (IM, NHS, STP, CMAQ, HBRR, Recreational Trails, Appalachian
Development Highway System, High Priority Projects, and metropolitan planning)
subject to the equity provision, as well as three new formula programs, the
Coordinated Border Infrastructure Program, the Safe Routes to School Program, the
Highway Safety Improvement Program, and the existing rail-highway grade crossing
program.
The EB program also includes a number of hold harmless provisions that
provide that certain states will receive the greater of the annual percent return
described above or their share of total apportionments over the six-year life of TEA-
the state must: have a population density of less than 40 people per square mile and
at least 1.25% of their total acreage must be under federal jurisdiction; have a
population less than one million people; have a median household income less than
$35,000; have a fatality rate on Interstate Highways in 2002 of greater than 1.0 per
100 million vehicle miles traveled; or have an indexed state motor fuel excise tax rate
that is more than 150% of the federal motor fuel excise tax rate. There are twenty-
seven states that qualify under these criteria: Alabama, Alaska, Arizona, Arkansas,
Colorado, Delaware, District of Columbia, Florida, Idaho, Kentucky, Louisiana,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota,
Oklahoma, Oregon, South Dakota, Texas, Vermont, Utah, West Virginia, Wisconsin,
and Wyoming.
The EB program also guarantees that no state may receive less than a set
percentage of its average annual TEA-21 apportionments for each fiscal year. In
effect, this sets an annual percentage floor, relative to a state’s TEA-21 average
apportionment, beneath which no state can fall. The annual percentage floors are as
follows: 117% for FY2005, 118% for FY2006, 119% for FY2007, 120% for
FY2008, and 121% for FY2009.
The programmatic distribution of Equity Bonus Program funds to the states is
as follows. Each year the first $2.639 billion is apportioned to the STP, except that
certain set-asides such as for Transportation Enhancements and some population-
based sub-state allocations do not benefit from this distribution. Any Equity Bonus
funds above $2.639 billion are distributed to the six core programs: IM, HBRR,
NHS, STP, CMAQ, and the HSIP. The distribution among these programs is based
on the ratio of each program’s apportionment to the total apportionment of all six
programs for each state. FHWA analysis indicates that over the five-year life of
SAFETEA the EB program distributions will cost $40.9 billion. (CRS contacts:
Robert Kirk and John Fischer)
Highway Program and Formula Changes
Apportioned Programs
Funds for all of the programs discussed here are apportioned to the states on an
annual basis using formulas found in SAFETEA. As a result they are sometimes
referred to as the “apportioned” programs. In some instances, apportioned programs
are also referred to as formula programs.
Under TEA-21 most highway funding was reserved for five major apportioned
programs, which are usually referred to as the core programs. They, along with the
minimum guarantee, accounted for the vast majority of highway spending: 86% of
the FY2003 authorized amount. SAFETEA increases the number of these core
programs from five to six: interstate maintenance (IM), national highway system
(NHS); surface transportation program (STP); highway bridge and bridge
maintenance (HBRR); congestion, mitigation, and air quality (CMAQ); and the new
highway safety improvement program (HSIP). A seventh program, the equity bonus
(EB)(which replaced the TEA-21 minimum guarantee program), is sometimes
referred to as a core program. The majority of funding in the overall surface
transportation bill, and the vast majority of highway funding, goes to the so-called
“core” highway programs. In addition to the core programs there are a couple of
additional and much smaller apportioned programs that existed in TEA-21, and are
continued in SAFETEA, e.g.: metropolitan planning and the recreational trails
program.
Although many potential new programs were considered during reauthorization
only a very few were finally included in SAFETEA. In addition to the HSIP, creates
two new formula programs: the Coordinated Border Infrastructure Program (CBI),
which replaces the TEA-21 discretionary program of the same name; and the Safe
Routes to School Program (SRSP).
Apportioned Program Formula Changes. Under TEA-21, most of the
funds distributed under the Federal-Aid Highway program were apportioned to the
states based on apportionment formula factors set forth for the individual programs
under Title 23 of the U.S. Code.2 Some of these program’s formulas include a
combination of weighted factors such as lane miles, vehicle miles traveled, and
estimated tax payments to the highway account of the HTF. Others are primarily
based on a single factor such as the relative state share of total cost to repair or
replace deficient bridges (HBRR) or weighted non-attainment and maintenance area
population under the Clean Air Act (CMAQ).
Although SAFETEA did not make major changes in the existing program
formulas, the act did make some adjustments that are of note. The act eliminates the
10% safety STP set-aside that existed under TEA-21. The act continues the STP
Transportation Enhancements set-aside but sets it as the greater of 10% of the funds
apportioned to a state or the amount set-aside for FY2005. Adjustments were also
made to the underlying calculation under CMAQ of weighted non-attainment and
maintenance areas for ozone under the new 8-hour area standards. SAFETEA also
creates a $20 million NHS set-aside for the construction of ferry boats and ferry
terminal facilities in Alaska, New Jersey, and Washington. National Highway
System set-aside for the Territorial Highway Program is set at $40 million for
FY2005-FY2006 and at $50 million annually for FY2007-FY2009. The off-system
bridge program set-aside minimum is maintained at 15% but the 35% ceiling is
removed.
New apportioned program formulas.
Highway Safety Improvement Program (HSIP). The formula distribution
is weighted 33 1/3%, in the ratio of total federal lane miles in each state to the total
lane miles of the federal-aid highways (FAHP) in all states; 33 1/3%, in the ratio of
total FAHP vehicle miles traveled (VMT) in the state to total VMT on all FAHP
highways; 33 1/3%, in the ratio of the annual number of fatalities on the federal-aid
system in each state to the number of annual fatalities on the federal-aid system in all
states. The minimum payment to each state is set at 0.5%. The Railway-Highway
Crossings program is funded through a takedown from HSIP but is distributed
differently to the states. Crossings funding is distributed 50% based on the same
formula distribution formula that existed when crossings were part of the STP and
50% based on the ratio that the number of public railway-highway grade crossings
in each state bears to the total number of public railway-highway grade crossings in
all states. The act also requires that from the amounts made available for HSIP,
beginning in FY2006, $90 million annually be set aside by the states, according to
the share of each state to the total amount apportioned, to be used only for
construction and operational improvements on high risk rural roads.
Coordinated Border Infrastructure Program. Under TEA-21, this was
an allocated (discretionary) program. Under SAFETEA, the funds are to be
apportioned to states along the Canada-U.S. and the Mexico-U.S. borders under the
following formula: 20% in the ratio of incoming commercial truck crossings in a
state to the total incoming commercial truck crossings in all border states; 30% in the
ratio that incoming personal vehicle and bus crossings into a state to the total of
2 The MG program and the proposed Equity Bonus program also apportion funds by
formula. For a discussion of these programs see the “Donor-Donee Remedies” section.
incoming personal vehicle and bus crossings in all border states; 25% in the ratio of
total weight of incoming cargo in a state to the total weight of incoming cargo in all
border states; and 25% of the ratio that the total number of ports-of-entry in a state
bears to the total number of ports-of-entry of all border states.
Safe Routes to School. Funds are to be apportioned among the states in the
ratio that the total student enrollment in primary and middle schools in each state
bears to the total student enrollment in primary and middle schools in all the states.
No state is to receive an apportionment of less than $1 million. (CRS contact: Bob
Kirk and John Fischer)
Allocated (Discretionary) Programs
All non-apportioned highway programs are subject to allocations that are based
on criteria established in highway authorization and appropriation law. They also
may be, and usually are, subject to congressional earmarking. In TEA-21 all of the
programs in this category were smaller than the core programs, although there were
some programs with significant funding levels. The same remains true in SAFETEA.
The largest allocated program in SAFETEA is for congressionally mandated high
priority projects (earmarks) that are specifically designated in the act. Other relatively
large programs in the allocated category are the federal lands program, the interstate
maintenance discretionary program, the bridge discretionary program (for FY2005
only), and the transportation and community and system pilot preservation program
(TCSP).
New Allocated Programs. SAFETEA contains a few new large allocated
programs. Among these are a new transportation improvement program, a redefined
national corridor infrastructure program (formerly part of the national corridor
planning and development and coordinated border infrastructure program), and a new
program for projects of national or regional significance. All of these programs are
subject to 100% earmarking in the act. The text of the act, however, contains a
project selection criteria for the projects of national and regional significance and
creates an operating framework for these projects that is somewhat different from the
other allocated programs.
Innovative Finance and Tolling
Innovative Finance Provisions
Created by highway legislation primarily in the 1990s, innovative financing
mechanisms attempt to use the guarantee of future highway funds as a way to speed
project completion and to leverage additional funds for highway projects. There are
three mechanisms currently in use: grant anticipation revenue vehicles (GARVEEs);
credit assistance available as a result of the Transportation Infrastructure Finance and
Innovation Act (TIFIA); and state infrastructure banks (SIBs). Each of these
mechanisms has specific strengths and weaknesses that have been studied and
described by GAO, CBO, and FHWA.3
SAFETEA makes changes in two of the federal innovative finance programs:
TIFIA and the SIB program. Most of the changes may be viewed as perfecting
changes in the programs but other changes are more significant.
TIFIA. This program provides three types of federal financial assistance for
major transportation projects: secured loans, loan guarantees, and standby lines of
credit. SAFETEA both reduces the minimum project size threshold from $100
million to $50 million and also lowers the minimum project threshold for intelligent
transportation system projects from $30 million to $15 million. The act provides
$122 million annually to support TIFIA’s leveraging activities.
SIBs. Under the SIB program, federal funds are used to help capitalize state
infrastructure revolving funds. Under TEA-21, the program was limited to four
states, Missouri, Rhode Island, California, and Florida. SAFETEA allows any state
to enter into an agreement with DOT to establish SIBs eligible to be capitalized with
federal funds drawn from core highway program funds.
Toll Provisions
SAFETEA consolidates most of the tolling provisions in Section 1604. The
Act authorizes four tolling programs as well as an additional provision concerning
the tolling of HOV lanes. Section 1143 of the revenue title of the act, which
concerns private facility bonds and is discussed under bonding, is also expected to
have an impact on tolling.
Value Pricing Pilot Program. The program is continued under current law
at the level of 15 tolling projects. The act authorizes $11 million for FY2005 and
$12 million annually for FY2006-FY2009 with the stipulation that for each of the
years FY2006-FY2009 $3 million is to be made available for non-tolling congestion
pricing pilot projects.
Interstate System Reconstruction and Rehabilitation Pilot Program.
This program was continued under current law. Both House and Senate bill
provisions that would have changed the program were dropped during Conference.
Express Lanes Demonstration Program. This new program directs the
Secretary of Transportation to carry out 15 demonstration projects to permit states,
public authorities, or public or private entities designated by the states to collect a toll
3 U.S. GAO. Transportation Infrastructure: Alternative Financing Mechanisms for Surface
Transportation. Testimony before the Committee on Finance and Committee on
Environment and Public Works. September 25, 2002. Available online from the GAO
website at [http://www.gao.gov/new.items/d021126t.pdf]. See also the FHWA website at
[http://www.fhwa.dot.gov/innovativefinance/] and U.S. CBO, Innovative Financing of
Highways: An Analysis of Proposals, January 1998 online at the CBO website at
[ftp://ftp.cbo.gov/3xx/doc320/finhways.pdf].
at an existing toll facility, or any highway, bridge, or tunnel (including facilities on
the Interstate System) to 1) manage high levels of congestion; 2) reduce emissions
in a non-attainment area or maintenance area; or 3) to finance the expansion of a
highway for the purpose of reducing traffic congestion by adding lanes on the
Interstate System. It is assumed that most of the funding will go for HOT (high
occupancy toll) lanes. The use of revenues is restricted to use for debt service, a
reasonable return on any private financing, and toll facility operating and
maintenance costs. If the toll facility is annually certified as adequately operated and
maintained, excess revenues may be used for any other purpose relating to federal-aid
highway or transit projects.
Facilities that charge tolls under this program may set tolls that vary in price
according to time of day or level of congestion, as appropriate to improve air quality
or to manage congestion. High occupancy vehicle (HOV) facilities that charge tolls
under this section are required to vary in price according to time of day or level of
traffic. Fees collected on these express lanes are to be collected only through the use
of noncash electronic technology.
Interstate System Construction Toll Pilot Program. The act establishes
a pilot toll program which allows the Secretary of the Department of Transportation
to permit a state or compact of states to collect tolls on an Interstate System highway,
bridge, or tunnel for the purpose of constructing Interstate System highways. The
pilot program would permit the collection of fees on only three facilities on the
Interstate System. An interested state or compact of states must demonstrate that
financing the construction of the facility with the collection of tolls under the
program is the most efficient and economical way to advance the project. States will
not be allowed to enter into an agreement with a private person under which the state
is prevented from improving or expanding the capacity of public roads adjacent to
the toll facility to address conditions resulting from traffic diverted to such roads
from the toll facility, including excessive congestion, pavement wear, and increased
traffic accidents, injuries, or fatalities. Revenues may be used only for debt service,
a reasonable rate of return for private investors, and operating and maintenance costs,
including resurfacing, restoring, and rehabilitating the toll facility. Interstate
Maintenance program funds may not be used on a facility for which tolls are being
collected under the program.
Other HOV Tolling Provisions (including hybrids). Section 1121 of the
act allows state departments of transportation to allow vehicles, not otherwise eligible
for HOV use, to pay a toll charged by the agency to use the HOV lanes (including
HOV lanes on the Interstate System). The provision requires the state agency to 1)
establish a program to address how motorists can enroll and participate in the toll
program; 2) develop, manage, and maintain a system that will automatically collect
the toll; 3) establish policies and procedures to manage demand (i.e. traffic levels)
by varying the toll amount charged; and 4) establish policies and procedures to
enforce violations of use of the facility. Section 1121 also allows for the tolling of
“low emission and energy-efficient vehicles” at a preferential rate for HOV use.
Private Activity Bonds
The act amends Section 142 (a) of the Internal Revenue Code of 1986 to allow
the issuing of tax-exempt private activity bonds to finance highway projects and rail-
truck transfer facilities. This allows state and local governments to issue tax exempt
bonds to finance the activities of “private persons” (meaning the federal government
or other individual entities other than state or local governments) to construct such
facilities.
The act qualifies three categories of projects for tax-exempt facility bonding:
any highway project that receives assistance under any Title 23 (highways); any
international tunnel or bridge that likewise receives federal assistance under Title 23;
and any truck-train transfer facility project which receives federal assistance under
either Title 23 or Title 49 (mass transit). A $15 billion limit is placed on the
aggregate face amount of the bonds that can be issued. The conference report does
not estimate how much infrastructure could be created using the leverage of this
provision. If utilized up to the limit, the impact of this provision could be substantial.
By way of comparison, only California will receive more than $15 billion in formula
highway assistance from SAFETEA.
This bonding provision may be the most important tolling provision in
SAFETEA. Although the act does not require that projects using private activity
bonds be supported by tolls, it is unlikely that this would not be the case unless some
other revenue mechanism related to facility use could be created. (CRS contacts:
John Fischer and Bob Kirk)
Other Highway Provisions
Appalachian Development Highway Program (ADHP)
The ADHP is a road building program intended to break Appalachia’s regional
isolation and encourage Appalachian economic development. It is not considered part
of the federal-aid highway program per se, but receives its funding from the highway
trust fund. The program is administered under the auspices of the Appalachian
Regional Commission. Funds are apportioned by the Department of Transportation
to the member states based on their “cost to complete” estimates of the approved
Appalachian Development Highway System (ADHS). In terms of road miles, 85%
of the ADHS roads are either completed or under construction (as of the end of
2004). The ADHS 2002 Cost to Complete Report estimated the additional federal
funds needed (from FY2004 onward) to complete the system at $4.47 billion. Under
TEA-21 the ADHP received $450 million in contract authority annually. The
program also received significant additional funding through the appropriations
process during the TEA-21 years. ADHP funds are available until expended and
provide an 80% federal share. SAFETEA provides $470 million annually for the
ADHP. The act prohibits the use of toll revenues as credits for non-federal matching
funds on ADHP-funded projects.
Earmarking4
The level of earmarking in SAFETEA is exponentially larger in terms of both
numbers of projects and dollar terms then was the case in TEA-21. For starters,
SAFETEA contains at least 5,092 separate earmarks for congressional high priority
projects (HPPs) with a value of over $14.8 billion (there are several additional blank,
but nonetheless numbered earmarks in the conference report). This compares with
The HPPs are not the only earmarks in the highway title of the act (Title I).
Three new earmarked categories have been created. The first, projects of national
and regional significance, provides almost $1.8 billion for 25 projects. The individual
earmarks in this category are mostly larger then those in the HPP program and, as the
name of the program suggests, are larger in scope. A second set of earmarks is
provided for national corridor infrastructure improvements. This category lists 33
earmarks valued at over $1.9 billion. The corridor infrastructure program is not new,
but was not earmarked in previous authorizing legislation. The final earmarked
category is for transportation improvements. There are 465 projects listed with over
$2.5 billion in dedicated funding. This is a totally new program and there is no
explanation in the conference report as to how, or if, the projects in this list are
supposed to differ from those in the HPPs program. It should be noted that individual
projects may appear in more then one earmarking list and that they may receive
different amounts of funding in each instance.
The above does not represent the full extent of earmarking in the act. There are
also 32 individually listed earmarks throughout the highway title of the bill (Title I).
These have a total value of almost $774 million. At least 25 earmarks can also be
found in the research title of the bill (Title V) requiring an additional $241.6 million
in funding.
The other largely earmarked program in the act is in the transit title. The bus
and bus facilities program contains 662 specific projects with almost $1.6 billion in
funding. There are at least 39 additional stand-alone earmarks in the text of the rest
of the transit title valued at just over $191 million.
Above-the-Line/Below-the-Line. By some estimates the total amount of
earmarking in the bill exceeds $24 billion, although an exact accounting is difficult
at best for definitional reasons. Much of the discussion about earmarks since passage
of the bill has been focused on how earmarking effects the Equity Bonus calculation.
By congressional parlance there are two types of earmarks in the bill for EB
purposes, those “below the line”, meaning they are part of the annual EB process and
those above the line projects, meaning they are not. This computation significantly
affects state shares because some state’s have received considerably more earmarked
funds on a proportional basis than others.
4 Information on earmarks is from Transportation Weekly. Overview of Earmarked Projects
in the Conference Report. August 4, 2005. p. 19.
Of the highway title (Title I) earmarks the HPPs are below the line. The other
three earmarked programs are above the line and miscellaneous earmarks in the
highway title are above the line. Transit earmarks are not part of the EB calculation.
Transportation Enhancements (TE) Program
Transportation Enhancements (TE) program activities (Sec. 1122) are nearly
identical to those under TEA-21. The TE program funds 12 major categories of
projects:
3. acquisition of scenic and historic easements and sites (including historic
battlefields);
7. rehabilitation and operation of historic transportation building, structures, or
facilities;
8. preservation of abandoned railway corridors (including conversion and use
of the corridors for or bicycle trails);
11. environmental mitigation of runoff pollution and provision of wildlife
connectivity;
The funding mechanism for TE program activities has been modified. Under
TEA-21, 10% of funds apportioned to a state were required to be available only for
TE activities. Under SAFETEA (Sec. 133(d)(2)), funding for the TE program is the
greater of 10% of the funds apportioned to a state under the Surface Transportation
Program (STP) for a fiscal year, or the amount that was apportioned to a state in
FY2005. Because STP funding is set to rise under P.L. 109-59, the 10% set-aside for
TE activities ensures that additional funding will become available for enhancement
projects.
Transportation and Community and System Preservation
(TCSP) Program
The TCSP program, established under TEA-21 and reauthorized under
SAFETEA, is designed to assist in planning, developing, and implementing strategies
to integrate transportation, community, and system preservation plans and practices,
and identify private sector-based initiatives to improve such relationships. TCSP
funding was authorized for projects that aimed to improve the efficiency of the
transportation system; reduce environmental impacts of transportation; reduce the
need for costly future public infrastructure investments; ensure efficient access to
jobs, services, and centers of trade; and examine development patterns and identify
strategies to encourage compatible private sector development patterns. State, tribal,
regional, and local governments would be eligible to receive TCSP grants.
Sec. 1117 of P.L. 109-59 provides a six-year total funding authorization of $270
million for the TCSP program, with $25 million authorized for FY2005 and $61.25
million authorized for FY2006-FY2009. This is substantially more than was
authorized under TEA-21 ($120 million), but significantly less than the $454 million
appropriated during the life of TEA-21 (additional funds were added above the TEA-
Under TEA-21, TCSP spending was authorized at $20 million for FY1999 and
$25 million per year for FY2000 through FY2003. As envisioned in TEA-21,
competitive grants were awarded in FY1999. For FY2000 to FY2003, TCSP projects
were earmarked in the annual transportation appropriations bills. TCSP funding
amounted to $13.5 million in FY1999, $31.1 million in FY2000, $46.9 million in
FY2001, $273 million in FY2002, and $89.5 million in FY2003.
Pedestrian and Bicycle Mobility
SAFETEA continues to provide a significant level of funding for bicycle and
pedestrian programs that encourage a greater number of non-motorized trips, and
pedestrian and cyclist safety, health, and education programs.
The major federal program that has supported pedestrian and bicycle mobility
since the passage of ISTEA is the Transportation Enhancements (TE) program (23
USC §133(b)(8)), which is unchanged with respect to provisions for bicyclists and
pedestrians. That program permits states to allocate TE funds for (1) provision of
facilities for pedestrians and bicycles, (2) provision of safety and educational
activities for pedestrians and bicyclists, and (3) preservation of abandoned railway
corridors (including the conversion and use thereof for pedestrian or bicycle trails).5
Between FY1992 and FY2004, 55% of TE funds were programmed for these three
activities. Provision of pedestrian and bicycle facilities accounted for 46.3% of
programmed TE activities through FY2004.6 A number of other programs within
Titles 23 and 49 USC also provide for the construction of bicycle and pedestrian
facilities associated with road and transit projects.
Safe Routes to School Program (Sec. 1404). The Safe Routes to School
Program is a new program under SAFETEA. It requires the Secretary of
Transportation to establish and carry out a program to enable and encourage children,
including those with disabilities, to walk and bicycle to school; to make bicycling and
walking a safer and more appealing transportation alternative, thereby encouraging
a healthy and active lifestyle from an early age; and to facilitate the planning,
development, and implementation of projects and activities.
The Safe Routes to School Program will be funded at $612 million for FY2004-
FY2009. Funding is to be apportioned among the states based on the ratio of total
student enrollment in primary and middle schools in each state relative to the total
student enrollment in primary and middle schools in all the states. Each state would
5 There are 12 enhancement activities in all.
6 National Transportation Enhancements Clearinghouse. Connections. Summer 2005. p.2.
receive a minimum apportionment of no less than $1 million per fiscal year and the
Secretary is directed to set aside not more than $3 million for the administrative
expenses of the Secretary in carrying out the program. Each State’s apportionment
would be administered by the State’s department of transportation. The federal share
of the cost of projects and activities under the Safe Routes to School Program is
100%, and funds ware to remain available until expended. Funds are not transferable
and will remain available until expended.
In P.L. 109-59, agencies eligible for funding under this program include state,
local, and regional agencies, including nonprofit organizations, that demonstrate an
ability to meet the requirements of the program. Funds apportioned under the
program may be used for planning, design, and construction of infrastructure-related
projects that will substantially improve the ability of students to walk and bike to
school. Projects include sidewalk improvements, traffic calming and speed reduction
improvements, on-street bicycle facilities, off-street bicycle and pedestrian facilities,
pedestrian and bicycle crossing improvements, secure bicycle parking facilities,
secure bicycle parking facilities, and traffic diversion improvements in the vicinity
of schools.7
Funds allocated to states under this program may also be used for
noninfrastructure-related (or behavioral) activities to encourage walking and
bicycling to school, such as public awareness campaigns and outreach to press and
community leaders, traffic education and enforcement in the vicinity of schools,
student sessions on bicycle and pedestrian safety, health, and environment, and
funding for training, volunteers, and coordinators of safe routes to school programs.
Non-infrastructure-related spending should not be less than 10% and not more than
30% of the amount apportioned to a state for the program. Each state receiving an
apportionment under this program is required to use a sufficient amount of the
apportionment to fund a full-time position of coordinator of the state’s safe route to
school program.
The Secretary is required to make grants to a national nonprofit organization
engaged in promoting safe routes to schools to operate a national safe routes to
school clearinghouse; to develop information and educational programs on safe
routes to school; and to provide technical assistance and disseminate techniques and
strategies used for successful safe routes to school programs. Funding for the
clearinghouse would come from the Secretary’s administrative expenses set aside.
Section 1404 also establishes a task force to study and develop a strategy for
advancing safe routes to school programs nationwide. The results of the study are
to be transmitted to Congress not later than March 31, 2006. (CRS contact:
Glennon Harrison)
7 The definition of “in the vicinity of schools” means the area within bicycling or walking
distance of the school (approximately 2 miles).
Transit Reauthorization
SAFETEA provides $45.3 billion in guaranteed funding for transit for the five-
year authorization period (FY2005-FY2009). Including FY2004 transit funding, the
six-year total is $52.6 billion, a 46% increase over the $36 billion guaranteed for8
transit in TEA-21.
Within the overall increase, Congress shifted the share of funding going to
various parts of the transit program. The share of transit funding going to the
Urbanized Area Formula Program shrank from 47.9% under TEA-21 to 44.0%,
while the share going to the Non-Urbanized (i.e. rural) Formula Program increased9
from 3.3% under TEA-21 to 5.2%. Relatedly, the share of total transit formula
funding going to four of the largest (in terms of population) states shrank by nearly
8% (though the share of the largest state in terms of population, California, increased
by 1.2%), while the share going to the 40 least-populated states (plus the District and10
territories) increased by 11.1%.
Generally, the act made only minor changes to the structure of the federal transit
program. As described below, a few new programs were added, several new funding
categories were created within existing programs, and some changes were made to
existing programs. Other provisions in the act include a requirement that all federal
agencies in the National Capital Region offer their employees a transit pass as a
transportation fringe benefit (Section 3049); a provision making the alternatives
analysis required as part of the New Starts program eligible for FTA grants (Section
3037), with 18 such studies earmarked for FY2006-FY2007; and earmarks for the
Bus and Bus Facilities Program for FY2006-FY2009 (in TEA-21, there were no
earmarks for that program for the last three years of the authorization period, leaving
the earmarking during those years to the appropriations committees).
New Programs
Growing States Program and High-Density States Program. These
two programs provide a total of $1.7 billion in additional funding (about a 10%
addition over the FY2006-FY2009 period) to the Urbanized Area Formula and Non-
Urbanized Area Formula programs (Section 3038). Half of the funds under this pair
of programs are apportioned to states according to population forecasts for 15 years
beyond the date of the most recent Census, and are distributed to both urbanized and
non-urbanized areas within each recipient state according to the ratio between urban
8 The TEA-21 figures are not adjusted for inflation, so the percentage increase includes the
effect of inflation. The “real” increase in transit funding over TEA-21 is somewhat less than
9 Transportation Weekly, Table: “Shifting Priorities Within the Transit Program,” August
10 Ibid, “Winners and Losers: State Shares of Total Transit Formula Funding,” August 17,
and rural population within that state. The other half of the funding is distributed to
urbanized areas in states whose population densities exceed 370 persons per mile.11
New Freedom Program. This is a formula program to increase the
availability of transportation services to persons with disabilities, “including
transportation to and from jobs and employment support services” (Section 3019).
It is authorized at a total of $339 million over the period FY2006-FY2009. This
program will not be subject to the labor protection provisions of 40 U.S.C. 533(b)
that apply to most other transit programs.
Alternative Transportation in Parks and Public Lands Program. This
is a discretionary grant program to provide transportation alternatives to the private
automobile in national parks and public lands, in order to protect those areas and to
provide access to those areas for everyone, including persons with disabilities
(Section 3021). It has a total authorization of $97 million. This program will be
exempt from the labor protection provisions of 40 U.S.C. 533(b) that apply to most
other transit programs.
Small Transit Intensive Cities Formula Program. A new formula
program was created within the Urbanized Area Formula Program, funded by a one-
percent set-aside of the Urbanized Area Formula Program authorized funding
(providing approximately $150 million total over the FY2006-FY2009
period)(Section 3034). This program provides additional funding for small (under
200,000 in population) urbanized areas that provide a level of transit service
comparable to that provided by urbanized areas with populations between 200,000
and 1 million. The areas of transit service that are measured for this program are:
passenger miles per vehicle revenue mile and vehicle revenue hour; vehicle revenue
miles and hours per capita; and passengers and passenger miles per capita. This
program is a response to an issue created by the formula for urbanized areas under
200,000 in population: unlike the formulas for larger urbanized areas, the formula for
urbanized areas under 200,000 in population does not include any performance
factors. One reason for this difference was to relieve transit providers in small areas
of the burden of having to collect and report the same amount of data about their
operations as agencies in the larger areas. But one result of the difference in
treatment is that small areas that provide higher-than-average levels of transit service
do not receive a level of funding that recognizes their efforts, compared to other
small areas that do not offer a comparable level of service. Section 3033 of TEA-21
directed DOT to study the issue. DOT concluded that sufficient issues existed to
consider changes in the Urbanized Areas Formula Program apportionment formulas12
to reward the extra effort of these transit-intensive areas. This change will have the
effect of shifting approximately 1% of funding from urbanized areas over 200,000
in population to those under 200,000 in population.
11 Currently, states exceeding that threshold are Connecticut, Delaware, Maryland,
Massachusetts, New Jersey, New York, and Rhode Island. Though for the purposes of most
transit programs the definition of “state” includes the District of Columbia and U.S.
territories, eligibility for these programs is explicitly limited to the fifty states.
12 The study is available at [http://www.fta.dot.gov/library/policy/rtc/].
Small Starts Program. This program is a new category within the New
Starts program, which funds new fixed-guideway transit systems or extensions to
existing systems (Section 3011(a)5309(e)). New Starts projects seeking less than $75
million in federal funding (Small Starts) will be subject to a streamlined evaluation
process, with fewer evaluation categories, compared to those projects seeking $75
million or more in federal funding. This program is authorized at $200 million
annually for FY2007-FY2009. The exemption from the evaluation process for
projects seeking less than $25 million in federal funding is eliminated. The federal
share for New Starts projects (80%) was not changed.
New Apportionment Factors for the Formula Grants for Other than
Urbanized Areas Program. $45 million was set aside from the Non-Urbanized
Area Formula Program for grants to Indian tribes for public transportation on Indian
reservations (Section 3013(c)). Also, 20% of the Non-Urbanized Area Formula
program funding will now be apportioned according to a state’s share of the nation’s
total non-urbanized land area. The remaining 80% of the program’s funding will
continue to be apportioned according to a state’s share of the nation’s total non-
urbanized population. (CRS Contact: David Randall Peterman)
Passenger Rail and Rail Safety Provisions
Maglev. The act authorizes a total of $90 million for magnetic levitation train
deployment for FY2005-FY2009 (Section 1307; the authorization is in Section
1101(a)(18)). That is more than the $60 million in contract authority provided for
maglev deployment under TEA-21 (TEA-21 also authorized an additional $950
million for this program that was never appropriated). Of the authorized funding,
50% is for a maglev project between Las Vegas and Primm, Nevada, and 50% is for
a maglev project east of the Mississippi River. Under the TEA-21 deployment
program, maglev projects in Pennsylvania and Maryland were selected to compete
for the available funding. The explanatory language in the conference committee
report on SAFETEA notes that the Committee intends for this program to be
administered as a new program and not as the continuation of any previously13
authorized program.
High-Speed Rail Corridor Development. The act reauthorizes the Swift
Rail Act, expanding the eligible expenses from ‘planning’ to ‘development’ of high-
speed rail corridors (Section 9001). It continues the current authorized level of
funding: $70 million annually for corridor development, and $30 million for high-
speed rail technology improvements, for FY2006-2013.
Elimination of Rail-Highway Crossing Hazards in High-Speed Rail
Corridors. The act authorizes a total of $50 million over the period FY2005-
FY2009 for the elimination of rail-highway grade crossing hazards in high-speed rail
corridors (Section 1103(f)).
13 H.Rept. 109-203, p. 860.
Alaska Railroad. The act directs the Secretary of Transportation to make
grants to the Alaska Railroad for capital rehabilitation and improvements benefitting
passenger transportation (Section 9006). No specific amounts are authorized for
these grants; the act authorizes “such sums as may be necessary.” Another provision
(Section 3034(d)(2)) provides that the amount apportioned to the Anchorage
urbanized area under the Urbanized Areas Formula Program “shall be available to
the Alaska Railroad for any costs related to its passenger operations.”
Welded Rail and Tank Car Safety Improvements. The act requires the
Federal Railroad Administration (FRA) to establish a program to review continuous
welded rail joint bar inspection data from railroads and FRA track inspectors, and
directs FRA to require track owners using continuous welded rail track to improve
the identification of cracks in rail joint bars (Section 9005). FRA is also directed to
develop regulations for appropriate design standards for pressurized tank cars, and
recommend ways to reduce the risk of catastrophic fracture of pressurized tank cars
constructed before 1989. (CRS contact: David Randall Peterman)
Highway and Commercial Vehicle Safety Programs
Infrastructure Safety, including the Highway Safety
Improvement Program (HSIP)
SAFETEA authorizes a new categorical grant program for highway safety, the
Highway Safety Improvement Program (HSIP)(Section 1401). This program
subsumes the existing roadway hazard elimination program (23 U.S.C. 152), which
funded such projects as installing barriers and guard rails.
Under TEA-21 the Section 152 program and the Section 130 program
(elimination of hazards at rail-highway grade crossings, such as by installing warning
lights and gates), which focused on elimination of infrastructure hazards, were
funded through a 10% set-aside from the Surface Transportation Program. This
amounted to $560 million in FY2005. Of that amount, under TEA-21 criteria states
were required to spend an amount equal to at least the amount provided in 1991 for
hazard elimination (at least $317 million annually: $155 million for rail-highway
hazard elimination and $162 million for other general roadway hazard elimination).
States could use the remainder on other highway projects if they certified it was not
needed for safety improvements.
The new HSIP Program is authorized at $1.2 billion in FY2006, rising to $1.3
billion by FY2009. This funding is apportioned by a formula using three ratios: one-
third of the funds are apportioned based on a state’s share of total lane-miles of
federal-aid highways; one-third based on a state’s share of total vehicle miles traveled
on federal-aid highways; and one-third based on a state’s share of fatalities on the
federal-aid highway system. No state will receive less than 0.5% of the funding
apportioned for this program.
The HSIP has two set-asides: $220 million is each year is reserved for rail-
highway grade crossing hazard elimination (Section 130), with its own
apportionment formula; and $90 million each year is reserved for projects on high
risk rural roads (rural roads having fatality and incapacitating injury rates above the
statewide average for such roads). In both cases, states that demonstrate to the
Secretary’s satisfaction that they have met all their needs for safety projects on grade
crossings or on high risk rural roads can use their share of those funds for other safety
projects. States are required to prepare a strategic highway safety plan. The overall
program authorization is $1.2 billion in FY2006, rising to $1.3 billion by FY2009
The act, as mentioned earlier, also creates a new Safe Routes to Schools
program (Section 1404) to fund infrastructure projects that increase the safety of
children within two miles of primary and middle schools, in order to encourage
children to walk or bike to school. The funding is apportioned by formula based on
student enrollment, with a minimum of $1 million for each state. At least 10%, but
not more than 30%, of the program funds are to be spent for programs dealing with
behavior and other non-infrastructure projects. The program is authorized at $54
million in FY2005, rising to $183 million in FY2009.
Federal Traffic Safety Program and Associated State Grants. The
act creates a new grant program to promote seat belt use (Section 2005). States that
enact a primary seat belt law14 after December 31, 2002 would receive a grant (states
that have already enacted a primary seat belt law will also receive a smaller grant
under this program). Alternately, a state that achieves a seat belt use rate of 85% or
more for two years is also eligible for a grant under this program. The grant funds
may be used for a variety of highway safety purposes; the federal share for projects
funded by these grants is 100%. The program is authorized at $125 million annually
for FY2006-FY2009.
The act also expands a grant program to reduce the rate of motorists driving
while impaired by alcohol (Section 2007). To receive a grant, a state must have an
alcohol-related fatality rate of 0.5 or less per 100 million vehicle miles traveled, or
must be carrying out a series of programs, described below, to discourage driving
while impaired. For FY2006, a state must be carrying out 3 of the specified
programs, for FY2007a state must carry out 4 of the programs, and for FY2008 and
FY2009 a state must be carrying out 5 of the specified programs. The specified
programs are: check points or saturation patrols; a prosecution and adjudication
program; annually increasing the percentage of drivers involved in fatal accidents
whose blood is tested for its alcohol content; more severe penalties for drivers
convicted of driving with a blood alcohol content of 0.15% or higher (compared to
those convicted with lower levels of blood alcohol); a program for effective alcohol
rehabilitation or courts that specialize in driving while impaired cases that emphasize
close supervision of high-risk offenders; an effective strategy for preventing drinking
by persons under age 21; an administrative license revocation system; and a program
that returns “a significant portion” of fines collected for driving under the influence
of alcohol to communities for comprehensive programs to prevent impaired driving.
The grants may be used to fund any of the specified programs, or certain other related
expenses. There is also a set-aside of up to 15% of the funds for this program for
14 A primary seat belt law allows police officers to stop a vehicle for a violation of a seat belt
use law; no other violation of law is required to initiate the traffic stop.
grants to the 10 states with the highest rates of impaired driving-related fatalities.
The program has a total authorization of $555 million over the authorization period.
Other new programs in the act include a motorcyclist safety grant program
(Section 2010) to fund safety training and education programs (authorized at $6
million for FY2006-2008, $7 million for FY2009); and an incentive grant program
for states that require children between 50 and 65 pounds to be in appropriate child
restraints (Section 2011, authorized at $6 million for FY2006-2008, $7 million in
FY2009).
The act also directs that DOT establish standards to reduce vehicle rollover
crashes, to reduce the incidence of occupants being thrown from vehicles in rollover
crashes, to increase the roof strength of passenger vehicles to protect occupants in
rollover crashes (Section 10301), and to enhance passenger motor vehicle occupant
protection in side impact crashes (Section 10302). (CRS Contact: David Randall
Peterman)
Intelligent Transportation Systems (ITS)
ITS, often consisting of communication systems, sensors or monitoring
equipment, and computers, is used in highway or transit projects, facilities, or
operations with the intention of improving their performance or safety. For example,
ITS enables traffic management centers to receive real-time video and other measures
or indicators of traffic flow, incidents, events, or crashes, as well as roadway and
weather conditions. Such information can help operators redirect traffic, coordinate
emergency response, or improve the operation and coordination of the surface
transportation system.
During the later years of TEA-21, the direct federal investment in ITS totaled
about $230 million per year. (That amount does not include federal aid highway
funds allocated by the states to deploy ITS.) Of that annual total, around $100
million was for ITS research and around $120 million was for deployment of ITS.
SAFETEA provides $110 million annually for ITS research (Section 5101).
The ITS deployment program is terminated after FY2005; ITS project costs are now15
eligible expenses in several of the core highway programs. The act provides for
advancing and testing new technologies, improving ITS standards and architecture,
and conducting training, including a requirement for the DOT to develop a national
ITS program plan (Section 5301). (CRS Contact: David Randall Peterman)
15 SAFETEA does have an ITS deployment grant program for commercial vehicles
operations (Section 4126).
Research and Development and Technology
Deployment
Both the short- and long-term, research and development, as well as technology
deployment activities (RD and TD) have a role in helping to reduce the various
challenges that affect the performance or operation of the Nation’s surface
transportation systems. These challenges include congestion, security, loss of life and
injury due to traffic crashes, degradation of environmental or life quality (e.g.,
suburban sprawl), and the continual need for infrastructure rehabilitation. The federal
role in RD and TD seeks to advance and accelerate the use of improved or safer
technologies, processes, policies, vehicles, and infrastructure to reduce these
challenges. In the surface transportation arena, the federal role is primarily
administered or overseen by the FHWA, FTA, NHTSA, and the Research and
Innovative Technology Administration (RITA).16 In terms of the transportation
budget, two of the largest efforts of RD and TD pertain to ITS and FHWA’s RD and
TD program (discussed below). This section deals primarily with funds used to
support FHWA-administered programs.
FHWA conducts an extensive RD and TD program that involves all aspects of
the highway system. For these activities, Title V of SAFETEA authorizes roughly
$295 million per year, up from roughly $200 million annually under TEA-21. For
each of the years FY2005-FY2009, SAFETEA authorizes the following amounts for
transportation research and education: $169.4 million for surface transportation
research, development, and deployment; $26.7 million for training and education,
$27 million for the Bureau of Transportation Statistics, and $69.7 million for the
University Transportation Research Program. (SAFETEA also authorizes research,
development, and testing funds for transit and motor carrier activities as well as for
a variety of other technological objectives.) Research funds are used primarily to
advance and deploy technologies intended to improve highway pavements, structures,
roadway safety, and study highway policies. Some of the technology deployment
funds are earmarked for specific types of research or projects, and much of the
university-oriented funds are earmarked for specific institutions. Many state and
industry experts assert that FHWA’s RD and TD funds are of fundamental
importance to the states and their long-term ability to maximize the effective use of
federal aid funds. (CRS contact: David Randall Peterman)
Freight Rail and Intermodal Provisions
Title IX of SAFETEA, “Rail Transportation,” addresses three issues with
respect to freight rail transportation: infrastructure capacity, rail-to-rail competition,
and grade crossing conflicts. In light of increasing international trade volumes and
growing congestion on certain parts of the nation’s highway system, Congress has
been considering the capability of the freight railroads to expand their infrastructure
16 The former Research and Special Programs Administration (RSPA) in DOT was divided
into two new administrations by P.L. 108-246, which was signed into law on November 30,
capacity to handle more freight. Freight railroads primarily finance their
infrastructure needs without government aid. Congress has been evaluating how, and
under what circumstances, it might be appropriate for the federal government to
assist the railroads in expanding their networks. Another rail issue is the increasing
frequency of freight train traffic through the middle of some towns and city
neighborhoods. More frequent trains have increased delays for motor vehicle traffic
at grade crossings. While railroads have reduced the total number of railway miles
they maintain in service, they are utilizing their remaining track more intensely in an
effort to improve operating efficiency. A further congressional issue of a perennial
nature since price deregulation of the rail industry in 1980 is the captive shipper
question. Some Members of Congress, who have rail shippers in their district served
by only one railroad, are concerned with the high rail rates and poor rail service they
contend these shippers receive.
All of these rail issues have been debated in the context of stand alone
legislation introduced in the 109th Congress but SAFETEA also reflects these issues
in title IX of the act. For example, section 9007 requests the Transportation Research
Board of the National Academies to report to Congress on the performance of the
nation’s rail system in terms of service quality and rates, the railroads’ ability to meet
projected demand, and the effectiveness of public policy in balancing the need for
railroads to earn adequate revenues with those of shippers for reasonable rates and
adequate service. Congress also provided the following two funding mechanisms in
title IX of SAFETEA that are intended, at least partially, to address these issues.
Railroad Rehabilitation and Improvement Financing Program (RRIF)
Loan Program Expansion. SAFETEA (section 9003) expands a federal loan and
loan guarantee program authorized in TEA-21 for rehabilitating and improving rail
track. The RRIF Program expands tenfold from $3.5 billion to $35 billion in total
value of available loans. Of the $35 billion total, $7 billion is reserved for smaller,
regional and short-line railroads (non-Class I railroads). SAFETEA also amends
existing program language to expedite loan availability. Section 9003 states that the
Secretary of Transportation “shall” provide loans rather than “may” provide loans.
It also states that the Secretary shall not require collateral from a loan applicant or
that the loan applicant have previously sought a loan from another source, and
requires the Secretary to approve or disapprove a loan within 90 days. Significantly,
with respect to rail-to-rail competition and those shippers who refer to themselves as
“captive” to one railroad, section 9003 states that a loan my be issued “solely for the
purpose of constructing a rail connection between a plant or facility and a second rail
carrier, limited option rail freight shippers that own or operate a plant or other facility
that is served by no more than a single railroad.” Finally, SAFETEA adds “enhancing
rail infrastructure capacity and alleviating rail bottlenecks” to the list of priorities that
the Secretary should consider in issuing RRIF loans.17
Rail Line Relocation. SAFETEA (section 9002) creates a new federal grants
program for relocating rail track or grade separating rail track that is interfering with
a community’s motor vehicle traffic flow, its quality of life, or its economic
17 Further information on the RRIF program, including a listing of railroads who have
received loans, is available at [http://www.fra.dot.gov/us/content/177].
development. The program authorizes $350 million for each of fiscal years 2006
through 2009. At least half of the grants awarded must not be more than $20 million
each and the federal share is not to exceed 90% of the total cost of a project.
Rail Project Earmarks. Enhancing rail infrastructure capacity and
eliminating grade crossings were also funded in SAFETEA through project earmarks.
Under “Projects of National and Regional Significance” (section 1301), SAFETEA
provides $90 million for improving a rail line connecting Virginia seaports and Ohio,
$100 million for further planning of a freight rail tunnel under New York harbor,
$100 million to improve rail connections and eliminate grade crossings in the
Chicago area, $125 million to eliminate grade crossings on a rail line in communities
east of Los Angeles, $14 million for further study of a plan to relocate El Paso rail
yards out of the city, and $15 million to relocate a rail line connection to the Port of
Portsmouth, Virginia in order to eliminate grade crossings.
Study of Rail Transportation and Regulation. SAFETEA directs that
DOT conduct a comprehensive study of the Nation’s rail transportation system since
its deregulation in 1980, including the service levels, service quality, and rates of the
major railroads, the projected demand for freight rail service and constraints on
meeting that demand, and “the effectiveness of public policy in balancing the need
for railroads to earn adequate returns with those of shippers for reasonable rates and
adequate service” (Section 9007).
Intermodal Freight Pilot Program
Section 1306 of SAFETEA creates a new grant program entitled “Freight
Intermodal Distribution Pilot Grant Program” that provides $6 million in grants for
each of fiscal years 2005 through 2009 for improving freight mobility around U.S.
international ports, inland ports, and intermodal freight facilities. The pilot program
designates a total of six projects that are located in Oregon, Georgia, California,
Alaska, and North Carolina to carry out the program.
Recreational Trails Program (RTP)
SAFETEA continues the Recreational Trails Program (RTP), initially
authorized under ISTEA and expanded under TEA-21, as a state-administered,
federal-aid program to help states develop and maintain recreational trails for
motorized and non-motorized trail uses. The RTP provides funds for all types of
recreational trail use, including hiking, running, bicycling, equestrian use, wheelchair
use, snowmobiling, four wheel driving, off-road motorcycling, all-terrain riding, and
other off-road vehicle use. RTP funds may not be used for property condemnation,
constructing new trails for motorized use on National Forest or Bureau of Land
Management lands unless the project is consistent with resource management plans,
or facilitating motorized access on otherwise non-motorized trails.
Funding/Formula. In §1101(a)(8), SAFETEA authorizes a total of $370
million in contract authority for the RTP for FY2005-2009 ($60 million FY2005, $70
million for FY2006, $75 million for FY2007, $80 million for FY2008, and $85
million for FY2009). The measure also sets a specified level of $840,000 annually
for administrative expenses.18 Funds are allocated to the states by legislative
formula: 50% equally among all eligible states and 50% in proportion to the amount
of off-road recreational fuel use. Under SAFETEA, the RTP is subject to the same
annual obligation limitation as other federal-aid highway programs.
States are required to use 30% of their RTP funds for motorized trail uses, 30%
for non-motorized trail uses, and 40% for diverse trail uses. SAFETEA eliminates
the discretionary waiver from the 30% provisions, typically requested through state
trail advisory committees for motorized and nonmotorized projects, but retains the
small state exemption for any state with a total land area of less than 3.5 million
acres. The “sliding scale” provision in 23 U.S.C. §120(b) provides for additional
federal share under the federal-aid highway program in states with large amounts of
federal lands. SAFETEA amends the program to change the federal share for RTP
projects from a strict 80% to the sliding scale share used in some other federal-aid
highway programs. Additionally, SAFETEA encourages, but does not require, states
to use youth conservation or service corps in the construction and maintenance of
recreational trails.
Eligibility. SAFETEA amends the existing category of permissible uses19 for
RTP funding to expand use of educational funds for non-law enforcement trail safety,
trail use monitoring patrols, and trail-related training, but in an amount not to exceed
5% of the apportionment made to the state for the fiscal year. A new provision, 23
U.S.C §206(b)(2)(F), permits funding for trail condition assessment for accessibility
and maintenance.
ISTEA and TEA-21 required RTP sponsors to complete environmental
compliance documentation before applying for RTP funds. SAFETEA permits pre-
approval planning and environmental compliance costs to be credited toward the
non-federal share for RTP projects, limited to costs incurred less than 18 months
prior to project approval. (CRS contact: Sandra L. Johnson)
Environmental Issues, including “Streamlining”
Before final design, property acquisition, or construction on a highway or transit
project can proceed, DOT (i.e., FHWA or FTA) must comply with certain
environmental review requirements, including those of the National Environmental
Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq.). NEPA requires all federal
agencies to consider the environmental impacts of proposed federal actions. To
ensure that environmental impacts are considered before final decisions are made,
NEPA requires DOT to prepare an environmental impact statement (EIS) for any
federally funded action that significantly affects the quality of the human
environment. Projects for which it is not initially clear whether impacts will be
significant require the preparation of an environmental assessment (EA). If, it is
determined, at any time during the assessment, that a project’s impacts will be
18 23 U.S.C. §104(h)(1).
19 23 U.S.C. §206(d)(2).
significant, an EIS must be prepared. Projects that do not individually or
cumulatively have a significant social, economic, or environmental effect, and which
DOT has determined from past experience have no significant impact, are processed
as categorical exclusions. (For more detailed information about the NEPA process,
see CRS Report RL32024, Background on NEPA Implementation for Highway
Projects: Streamlining the Process, by Linda G. Luther.)
Another requirement that is generally carried out within the context of the
NEPA process is compliance with Section 4(f) of the Department of Transportation
Act of 1966.20 Section 4(f) requirements apply to the use of publicly owned parks
and recreation areas, wildlife and waterfowl refuges, and to publicly or privately
owned historic sites of national, state, or local significance. The law prohibits the use
of a Section 4(f) resource for a transportation project 21 unless there is no “prudent
and feasible” alternative to do otherwise, and the project includes all possible
planning to minimize harm to the resource.
Some Members of Congress have expressed concerns that the environmental
review process for large, complex highway and transit projects can be inefficient,
leading to delays in completion of those projects. To address this concern,
“Environmental Streamlining” provisions were included in TEA-21. Although not
defined by the statute, FHWA defines environmental streamlining as the timely
delivery of federally funded transportation projects, while protecting and enhancing
the environment. Because major transportation projects may be affected by dozens
of federal, state, and local environmental requirements, administered by multiple
agencies, improved interagency cooperation was identified by Congress as a critical
element to the success of environmental streamlining. The streamlining provisions
of TEA-21 required the Department of Transportation (DOT) to develop and
implement a “coordinated environmental review process” for highway projects that
either do have, or may have, a significant impact on the environment (approximately
9% of all highway projects fall into one of these categories).22 This coordinated
review process encouraged full and early participation by all relevant federal and
state agencies required to participate in a highway project.
Since the passage of TEA-21, numerous administrative activities have been
undertaken to facilitate streamlining. However, some Members of Congress
expressed the need for further legislation to expedite the environmental review
process required of highway construction and transit projects. As a result, SAFETEA
includes provisions intended to further streamline the environmental review process.
20 Section 4(f) of the DOT Act was originally set forth at 49 U.S.C. § 1653(f) and applies
to all DOT projects. A similar provision, found at 23 U.S.C. § 138, applies specifically to
Federal-aid highways. In 1983, as part of a general recodification of the DOT Act, 49 U.S.C.
§ 1653(f) was formally repealed and codified in 49 U.S.C. § 303 with slightly different
language. This provision no longer falls under a “Section 4(f),” but DOT has continued this
reference, given that over the years, the whole body of provisions, policies, and case law has
been collectively referenced as Section 4(f).
21 NEPA applies to all federal agencies, Section 4(f) requirements apply only to DOT.
22 General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to
Conduct Environmental Reviews of Highway Projects, GAO-03-534, May 23, 2003, pp 3-4.
The provisions deal primarily with NEPA and Section 4(f) requirements, but could
also be used to expedite compliance with other environmental requirements. (For
detail about the NEPA process, Section 4(f) requirements, and streamlining
provisions in SAFETEA, see CRS Report RL33057, Surface Transportation
Reauthorization: Environmental Issues and Legislative Provisions in SAFETEA-LU
(H.R. 3), by Linda Luther.)
Unlike TEA-21, the term “streamlining” is not used in SAFETEA. However,
the intended effect is the same — to expedite compliance with certain environmental
requirements, primarily NEPA and Section 4(f). With regard to NEPA, many of the
provisions in SAFETEA codify existing regulatory requirements, such as:
specifically designating DOT as the lead agency for surface transportation projects;
specifying the role of the lead and cooperating agencies; and allowing deadlines for
decision-making to be set.23 Following are key SAFETEA provisions related to
streamlining that change existing statutory or regulatory requirements:
!The establishment of a new entity in the NEPA process, referred to
as a “participating agency,” that includes those that intend to submit
comments on NEPA documentation in addition to those that meet
the definition of a cooperating agency;
!The establishment of procedures to be followed by lead and
participating agencies for the collaborative development of the
project’s statement of purpose and need and project alternatives,
including the establishment of deadlines on comments;
!The establishment of a 180-day statute of limitation on judicial
claims on final agency actions related to environmental
requirements;
!Authorization to allow the use of transportation funds to help
agencies required to expedite the environmental review process;
!The establishment of a dispute resolution process when agencies
disagree on elements of the environmental review process;
!Authorization to allow states to determine whether certain classes of
projects may be processed as categorical exclusions; and
!Authorization to allow the establishment of state pilot programs to
allow participating states to assume certain federal responsibilities
regarding compliance with environmental laws.
With regard to Section 4(f), under §6009(a), SAFETEA allows for the use of
publicly owned parks and recreation areas, wildlife and waterfowl refuges if it is
determined that such use would result in “de minimis impacts” to that resource. That
determination must receive concurrence from the official with jurisdiction over that
resource (e.g., the U.S. Fish and Wildlife Service, the National Park Service, or
applicable state or local park authorities). SAFETEA similarly allows for the use of
a publicly or privately owned historic site if a de minimis impact determination is
made in accordance with provisions of the National Historic Preservation Act (16
23 For more information on issues related to streamlining, see CRS Report RL32024,
Background on NEPA Implementation for Highway Projects: Streamlining the Process, by
Linda G. Luther.
U.S.C. 470f). Further, §6009(b) requires DOT, within one year, to issue regulations
clarifying factors to be considered and standards to be applied in determining whether
alternatives are “prudent and feasible” under the Section 4(f) requirements.
Also related to Section 4(f) requirements, §6007 of SAFETEA specifies that,
under administrative procedures established under §106 of the National Historic
Preservation Act, the Interstate System cannot be considered a “historic site” under
provisions of Section 4(f).24 It may still be determined that individual elements of
the Interstate System possess an independent feature of historic significance that may
still be protected under Section 4(f) requirements. (CRS contact: Linda Luther)
The CMAQ Program
In the year following the Clean Air Act Amendments of 1990, the Intermodal
Surface Transportation Efficiency Act of 1991 (ISTEA)25 directed the Secretary of
DOT to establish and implement a Congestion Mitigation and Air Quality
Improvement (CMAQ) program. The primary purpose of the CMAQ Program is to
reduce emissions from highway travel, as a means to assist states in complying with
the National Ambient Air Quality Standards (NAAQS).26 In particular, it authorized
funding for programs and projects intended to reduce carbon monoxide (CO) and
ozone. Specific types of projects eligible for CMAQ funds include, but are not
limited to: transportation control measures; inspection and maintenance programs for
auto emission controls; the purchase of publicly owned, alternative fuel vehicles;27
traffic flow improvements; and pedestrian and bicycle facilities and programs.
ISTEA established a formula to apportion CMAQ funds based largely on a
state’s population and pollution reduction needs. The population of each area in a
state that is a not meeting the NAAQS for ozone and/or CO is multiplied by a
weighting factor based on the level of nonattainment (e.g., moderate, serious, severe)
with the NAAQS. States with no maintenance or nonattainment areas for ozone or
CO are guaranteed a minimum apportionment of 0.5 percent of each year’s
authorized CMAQ funds. TEA-21 expanded the program to allow the use of CMAQ
funds for projects and programs intended to reduce certain types of particulate matter
(PM). TEA-21 did not, however, change the apportionment formula based on ozone
and CO. Therefore, states with maintenance or nonattainment areas for only PM
receive the guaranteed minimum CMAQ funding.
24 Those administrative procedures were published in a March 10, 2005 Federal Register
notice, pg. 11928.
25 ISTEA was the surface transportation authorization legislation for FY1991-FY1997.
26 A geographic area that meets or exceeds the standard is considered to be in “attainment”
for a particular NAAQS; areas that do not meet a standard are in “nonattainment.” A
“maintenance” area is one that was previously in nonattainment, but is currently attaining
the NAAQS subject to a maintenance plan. For a more extended discussion of issues
regarding NAAQS, see CRS Report RL30853, Clean Air Act: A Summary of the Act and Its
Major Requirements, coordinated by James E. McCarthy.
27 Ibid.
CMAQ funding for FY2005-FY2009 totals $8.6 billion. This compares to a
total of $8.1 billion in funding authorization for the six fiscal years under TEA-21.
SAFETEA amends the CMAQ apportionment formula under 23 U.S.C. §104(b)(2)
and the CMAQ program requirements under 23 U.S.C. §149(b). Under § 1808(b),
SAFETEA expands program funding eligibility requirements to specifically allow
the following projects to be eligible for CMAQ funds: advanced truck stop
electrification systems; projects that will improve transportation systems
management and operations; integrated, interoperable emergency communications
equipment; and diesel retrofits (under §1808(d), SAFETEA includes a directive that
diesel retrofit projects will have funding priority over other projects). SAFETEA
changes the requirements applicable to states receiving the minimum apportionment
to allow them to use CMAQ funds for projects that would otherwise meet CMAQ
eligibility requirements (§1808(c)).
Under §1808(f), SAFETEA directs DOT, in consultation with EPA, to evaluate
and assess a representative sample of CMAQ projects to determine their impacts on
air quality and congestion levels and to ensure the effective implementation of the
program. Directs DOT to maintain and disseminate a database describing project
impacts (no direct funding is provided for the evaluation or the database). (For detail
on provisions related to the to the CMAQ program, see CRS Report RL33057,
Surface Transportation Reauthorization: Environmental Issues and Legislative
Provisions in SAFETEA-LU (H.R. 3), by Linda Luther). (CRS contact: Linda
Luther)
Conformity of Transportation Plans and State
Implementation Plans (SIPs)
Under the Clean Air Act, areas that have not attained one or more of the six
National Ambient Air Quality Standards must develop State Implementation Plans
(SIPs) demonstrating how they will reach attainment. As of May 2005, at least 124
areas with a combined population of 159 million people were subject to the SIP
requirements. Section 176 of the Clean Air Act prohibits federal agencies from
funding projects in these areas unless they “conform” to the SIPs. Specifically,
projects must not “cause or contribute to any new violation of any standard,”
“increase the frequency or severity of any existing violation,” or “delay timely
attainment of any standard.” Because new highways generally lead to an increase in
vehicle miles traveled and related emissions, both the statute and regulations require
that an area’s Transportation Improvement Program (TIP), which identifies major
highway and transit projects an area will undertake, demonstrate conformity each
time it is revised (i.e., at least every two years). Highway and transit projects cannot
receive federal funds unless they are part of a conforming TIP.
While conformity has been required for more than a decade, the impact of the
conformity requirements is expected to grow in the next few years for several
reasons. The growth of emissions from SUVs and other light trucks and greater than
expected increases in vehicle miles traveled have both made it more difficult to
demonstrate conformity; recent court decisions have tightened the conformity rules;
and the implementation over the next three years of more stringent air quality
standards (both for ozone and for fine particles such as those found in diesel exhaust)
will mean that additional areas are subject to conformity. Thus, numerous
metropolitan areas could face a temporary suspension of highway and transit funds
unless they impose sharp reductions in vehicle, industrial, or other emissions. In a
2003 survey, the Government Accountability Office (GAO) found that, over the
previous six years, only 5 metropolitan areas had had to change transportation plans
in order to resolve a conformity lapse; but about one-third of local transportation
planners surveyed expected to have difficulty demonstrating conformity in the future.
(See U.S. GAO, Environmental Protection: Federal Planning Requirements for
Transportation and Air Quality Protection Could Potentially Be More Efficient and
Better Linked, April 2003.)
The Clean Air Act provides no authority for waivers of conformity, and the only
grace period allowed has been for one year following an area’s designation as
nonattainment. Only a limited set of exempt projects (mostly safety-related or
replacement and repair of existing transit facilities) can be funded in lapsed areas.
The rules do not even allow funding of new projects that might reduce emissions,
such as new transit lines. These limitations are among the issues of concern. In
addition, many have raised concerns about a mismatch between the SIP, TIP, and
long range transportation planning cycles, and have called for less frequent, but better
coordinated demonstrations of conformity. In its 2003 report, the GAO recommended
that “relevant federal agencies ... consider extending the three-year time frame
between required [long range] transportation plan updates and asking the Congress
to amend the Clean Air Act to change the conformity rules to match ....” This
recommendation was generally supported by transportation planners and highway
builders, but opposed by environmental groups and air quality planning officials.
As enacted, P.L. 109-59 requires less frequent conformity demonstrations (at
least every four years instead of every two years), and will shorten the planning
horizon over which conformity must be demonstrated to 10 years in many cases,
instead of the former requirement of 20 years. The local air pollution control agency
will need to be consulted and public comments solicited if the planning horizon is to
be shortened. The law also establishes a 12-month grace period following a failure
to demonstrate conformity before a lapse would be declared. (For additional
information, see CRS Report RL32106, Transportation Conformity Under the Clean
Air Act: In Need of Reform?, by James E. McCarthy.) (CRS contact: Jim
McCarthy)
Appendix
Table 2. SAFETEA Authorization Levels, FY2005 - FY2009
(in millions of dollars)
Authorization F Y 2005 F Y 2006 F Y 2007 F Y 2008 F Y 2009 TOTAL
ederal-Aid Highways
Interstate maintenance4,883.7604,960.7895,039.0595,118.5895,199.39925,201.595
program
National highway system5,911.2006,005.2576,110.8286,207.9376,306.61130,541.833
Bridge program4,187.7094,253.5304,320.4114,388.3694,457.42221,607.442
Surface transportation6,860.0976,269.8336,370.4706,472.7276,576.63032,549.757
program
Congestion mitigation & air1,667.2551,694.1021,721.3801,749.0991,777.2638,609.100
quality improvement program
Highway safety improvement0.0001,235.8101,255.7091,275.9291,296.4745,063.923
program
Appalachian development470.000470.000470.000470.000470.0002,350.000
highway system
Recreational trails program60.00070.00075.00080.00085.000370.000
Federal lands highways
program
Indian reservation roads300.000330.000370.000410.000450.0001,860.000
Park roads & parkways180.000195.000210.000225.000240.0001,050.000
Refuge roads29.00029.00029.00029.00029.000145.000
Public lands highways260.000280.000280.000290.000300.0001,410.000
National corridor
infrastructure improvement194.800389.600487.000487.000389.6001,948.000
program
Coordinated border123.000145.000165.000190.000210.000833.000
infrastructure program
National scenic byways26.50030.00035.00040.00043.500175.000
program
Construction of ferry boats &38.00055.00060.00065.00067.000285.000
ferry terminal facilities
Puerto Rico highway program115.000120.000135.000145.000150.000665.000
Projects of national &177.900355.800444.750444.750355.8001,779.000
regional significance
High priority projects2,966.4002,966.4002,966.4002,966.4002,966.40014,832.000
program
Safe routes to school program54.000100.000125.000150.000183.000612.000
Deployment of magnetic
levitation transportation0.00015.00015.00030.00030.00090.000
projects
Authorization F Y 2005 F Y 2006 F Y 2007 F Y 2008 F Y 2009 TOTAL
National corridor planning &
development & coordinated140.0000.0000.0000.0000.000140.000
border infrastructure
programs
Operation Lifesaver (set aside0.0000.5600.5600.5600.5602.240
from STP in 2005)
Rail-highway X-ing hazard
elim. in high speed rail0.0007.25010.00012.500 15.00044.750
corridors
Equity bonus program7,427.6966,872.7008,326.6939,175.1979,093.26640,895.552
Revenue aligned budget0.0000.000ssambnssambnssambnssambn
authority
Emergency relief when
allocations exceed $100Mssambnssambnssambnssambnssambnssambn
(general fund)
Transportation, community,
and system preservation25.00061.25061.25061.25061.250270.000
program
Transportation infrastructure
finance & innovation act122.000122.000122.000122.000122.000610.000
amendments
Value pricing pilot program11.00012.00012.00012.00012.00059.000
itle I37,108.96438,127.74140,447.14841,824.63241,981.990199,490.476
ay Safety
Highway safety programs163.680217.000220.000225.000235.0001,060.680
Highway safety R&D71.424110.000107.750107.750105.500502.424
Occupant protection incentive19.84025.00025.00025.00025.000119.840
grants
Safety belt performance0.000124.500124.500124.500124.500498.000
grants
State traffic safety
information system0.00034.50034.50034.50034.500138.000
improvements
Alcohol-impaired driving
countermeasures incentive39.680120.000125.000131.000139.000554.680
grant program
National driver register3.9684.0004.0004.0004.00019.968
High visibility enforcement0.00029.00029.00029.00029.000116.000
program
Motorcyclist safety0.0006.0006.0006.0007.00025.000
Child safety & child booster0.0006.0006.0006.0007.00025.000
seat safety incentive grants
Subtotal Title II298.592693.500699.500711.000729.0003,131.592
ublic Transportation
Formula & bus grants3,999.9186,979.9317,262.7757,872.8938,360.56534,476.082
Authorization F Y 2005 F Y 2006 F Y 2007 F Y 2008 F Y 2009 TOTAL
Urbanized area formula3, 593.1963,466.6813,606.1753,910.8434,160.36518,737.260
grants
bus & bus facility grants669.600822.250855.500927.750984.0004,259.100
Fixed guideway1,204.6851,391.0001,448.0001,570.0001,666.5007,280.185
modernization
Planning programs72.41695.00099.000107.000113.500486.616
Formula grants for special94.527112.000117.000127.000133.500584.027
needs
Formula grants for other250.890388.000404.000438.000465.0001,945.890
than urbanized areas
Job access and reverse0.000138.000144.000156.000164.500602.500
commute formula program
New freedom program0.00078.00081.00087.50092.500339.000
Alternative transportation0.00022.00023.00025.00026.00096.900
in parks and public lands
Capital Investment Grants
Major capital investment
grants of $75,000,000 or1,437.8301,503.0001,366.0001,500.0001,609.2507,416.080
more
Capital investment grants0.0000.000200.000200.000200.000600.000
of less than $75,000,000
Research & University54.56058.00061.00065.50069.750308.810
Research Centers
Subtotal Title III7,646.3368,622.9318,974.7759,730.89310,338.06545,313.000
— Motor Carrier Safety
Motor carrier safety grants 188.480188.000197.000202.000209.000984.480
Commercial drivers’ license0.00025.00025.00025.00025.000100.000
program improvement grants
Border enforcement grants0.00032.00032.00032.00032.000128.000
Performance and registration
information system0.0005.0005.0005.0005.00020.000
management grant program
Commercial vehicle
information systems and0.00025.00025.00025.00025.000100.000
networks deployment
Safety data improvement0.0002.0003.0003.0003.00011.000
grants
Subtotal Title IV443.329490.500517.000528.000541.0002,519.829
Surface transportation196.400196.400196.400196.400196.400982.000
research program
Training & education26.70026.70026.70026.70026.700133.500
Bureau of transportation27.00027.00027.00027.00027.000135.000
statistics
University transportation69.70069.70069.70069.70069.700348.500
research
Authorization F Y 2005 F Y 2006 F Y 2007 F Y 2008 F Y 2009 TOTAL
Intelligent transportation110.00110.000110.000110.000110.000550.000
systems research
ITS deployment122.0000.0000.0000.0000.000122.000
Subtotal Title V551.800429.800429.800429.800429.8002,271.000
Planning & Project Delivery
Clean school bus program0.00055.00055.0000.0000.000110.000
grants
ardous 55.215 59.275 60.275 60.275 0.000 235.040
ety
0.000 451.000 450.800 450.000 450.000 1,801.800
Swift rail act reauthorization0.000100.000100.000100.000100.000400.000
Rail line relocation capital
grant program0.000350.000350.000350.000350.0001,400.000
— Miscellaneous0.000151.000150.934158.319
NHTSA operations &0.000136.000142.800149.900157.400586.100
research
Rescission of Unobligated
Balances of Highway0000-8,543.000-8,543.000
Contract Authority
TAL Gross, all sources46,140.93649,154.99851,895.88354,027.11954,803.168255,530.104
TAL Net, all sources46,140.93649,154.99851,895.88354,027.11946,260.168246,987.104
bn = such sums as may be necessary
rce: Compiled from: FHWA, [http://www.fhwa.dot.gov/safetealu/fundtables.htm] for titles I, III, & V. For all other titles Transportation Weekly.
erence Report on H.R. 3. August 4, 2005 (data for these titles is still subject to revision).
: Totals and Subtotals reflect additional programs not specifically identified in the table. Hence totals may exceed the sum of their respective
mns.