Congressional Transportation Republicans Welcome New FHWA Memo

Top Republicans on the congressional transportation committees applauded updated policy guidance related to the implementation of the $1.2 trillion infrastructure law.

A new memorandum from the Federal Highway Administration unveiled Feb. 24 affirmed state agencies’ active role in decision-making affairs specific to infrastructure projects.

“Today is a win for states, communities and millions of Americans who stand to benefit from the flexibility provided in the Infrastructure Investment and Jobs Act,” Rep. Sam Graves (R-Mo.) and Sen. Shelley Moore Capito (R-W.Va.) said jointly Feb. 24. They referenced the 2021 bipartisan infrastructure law.

Graves and Capito, chairman of the House transportation panel and ranking member of the Senate committee on highways, respectively, added: “By issuing a revised memorandum, FHWA admitted that it was wrong in their attempts to undo the flexibility provided to states in the law by establishing preferences for certain policies and projects. We’re pleased FHWA recognized that when it comes to legislation of any kind that is passed and signed into law, an administration cannot ignore the role and will of Congress.”

For months, Graves and Capito, along with fellow Republicans, pushed back on the agency’s guidance from December 2021. The GOP leaders interpreted that earlier document as an outline of “fix-it-first” proposals for project maintenance.

“We will continue to conduct rigorous oversight and ensure the infrastructure law is being implemented as Congress intended,” the transportation policymakers continued.

According to the Feb. 24 memo from the agency titled, “UPDATE: Policy on Using Bipartisan Infrastructure Law Resources to Build a Better America,” “States determine which of their projects shall be federally financed by federal aid highway formula dollars. Different states have different needs when it comes to transportation assets that must be reconfigured and modernized, expanded and added, or retired and replaced.”

“FHWA recognizes and values the authority and role of the states in deciding how to prioritize the use of their federal aid highway dollars and will continue to administer funds and programs consistent with all requisite statutory requirements and considerations,” per the memo, which is credited to FHWA Administrator Shailen Bhatt.

Senate Environment and Public Works Committee Chairman Tom Carper (D-Del.), a champion of the Biden administration’s IIJA implementation, observed, “This policy memo highlights the critical need to improve safety, equity and sustainability on our roads, while also reaffirming the rights of states to choose how they fund their transportation projects. Investing in roads, highways and bridges should always be an area where we can find common ground.”

He further emphasized: “I hope that this updated guidance can help alleviate any concerns as we continue working together to address our nation’s infrastructure needs.”

American Trucking Associations President Chris Spear lauded the revised memo.

"As I told Congress earlier this month, FHWA's memo didn't just run counter to what lawmakers intended with IIJA," he said in a statement, "it was causing significant confusion for states a a time when those states need to be working closely with FHWA to make sure the record-setting investment is directed to where it can do the most good."

Last month, American Trucking Associations was among the nearly two dozen stakeholders that called on FHWA to withdraw its 2021 memorandum.

“As transportation stakeholders, we are concerned about the precedent that this policy memo sets. We fear the potential policies that future administrations could prioritize without undertaking a formal notice and comment rulemaking,” ATA, the U.S. Chamber of Commerce, the Association of American Railroads and other groups wrote Bhatt on Jan. 18.

“The IIJA includes robust funding levels that will help stabilize and enhance every state’s long-term transportation improvement efforts. Furthermore, this multiyear plan will facilitate private sector investments in equipment and personnel,” added the groups, which included the American Road and Transportation Builders Association and the Association of Equipment Manufacturers. “Ensuring that implementation undertakes transparent and lawful processes to engage the broadest possible spectrum of stakeholders is critical to maximizing IIJA’s transportation improvement and job growth outcomes.”