TEA-21: "An Historic Piece of Legislation", Public Roads: Vol. 62, No.2 September/October 1998

The deadline was Friday, May 22, when Congress would adjourn for the 10-day Memorial Day recess.

If Congress left without passing a surface transportation reauthorization, then President Clinton and his administration would continue to talk about states running out of money during the height of the spring construction season. The American Association of State Highway and Transportation Officials, representing the state transportation departments, would continue to talk about its survey that found that failure to pass a bill by Memorial Day would mean delaying the start of construction of 1,400 projects, costing $2.5 billion.

There had already been one six-month funding extension, which expired on May 1, but still, on May 21, there remained a long list of issues - major and minor; national, regional and local; and policy and project-specific - to be decided. After the decisions were made, the provisions had to be drafted, and then the entire bill had to pass in both chambers before they left the following afternoon.

So, on the evening of May 21, the "Big Seven" convened to go through the bill provision-by-provision and to make the final decisions on what was in and what was out.

On the House side, the group was led by Rep. Bud Shuster, R-Pa., chairman of the Transportation and Infrastructure Committee, the long-time champion of highway interests, and ardent supporter of more spending for highways. He was joined by Rep. Thomas E. Petri, R-Wis., chairman of the surface transportation subcommittee, and their Democratic counterparts, Rep. James L. Oberstar of Minnesota and Rep. Nick J. Rahall from West Virginia.

On the Senate side, there were Sen. John H. Chafee, R-R.I., the chairman of the Environment and Public Works Committee, the champion of the environmental community who looked to him to protect the major advances they had made in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA); Sen. John W. Warner, R-Va., chairman of the Transportation and Infrastructure Subcommittee; and Sen. Max Baucus, D-Mont., the ranking minority member of both the full committee and the subcommittee.

For several hours, with no breaks, the two groups sat across the table from each other. They worked their way through the bill, making decisions on all the issues they had been unable to resolve earlier. Now, with the deadline looming, decisions had to be made, and they were made. The Transportation Equity Act for the 21st Century (TEA-21) was born.

The race to the floor was filled with mishaps, just as it was in 1991 when ISTEA was brought to the House floor at 4 a.m. Just as in 1991, the printer in the House Legislative Counsel's office broke down. Just as in 1991, the original copy of the bill was dropped, and important, agreed-upon pages were left lying on the floor.

This time, however, Congress was able to pass a technical corrections bill to fix the problems caused by the rush to the floor. Congressional leaders attached the technical corrections bill, called the TEA-21 Restoration Act, to the Internal Revenue Service reform bill. Previous efforts at passing technical corrections following the Surface Transportation Assistance Act of 1982 and ISTEA failed. The conference report was passed in both chambers with little opposition. In the Senate, Sen. Ted Stevens, R-Alaska, chairman of the Appropriations Committee, raised some questions about the new budget procedures. In the House, Rep. David Obey of Wisconsin, the ranking Democrat on the Appropriations Committee, questioned the earmarked projects and the budget offsets that would be required.

President Clinton signs the Transportation Equity Act for the 21st Century.

The vote margin was comfortable in both chambers: 88 to 5 in the Senate, 297 to 86 in the House.

In the end, both Shuster and Chafee got what they wanted. Shuster won the very thing that he and other leaders of the House committee had sought for three decades - a mechanism to increase spending from the Highway Trust Fund. The bill included a guarantee linking the revenue coming into the Highway Account of the Highway Trust Fund to highway transportation. He created a new budget category with a firewall to separate transportation from the existing defense and domestic discretionary categories.

Chafee protected the gains made by the environmental community in the 1991 act. The planning provisions for states and metropolitan areas, the set-aside for enhancements and the flexibility to transfer money between programs all remained virtually unchanged. In addition, he got a new innovative financing program and eligibility to spend funds to protect natural habitats.

Shuster was excited about the spending mechanism. "It is an historic piece of legislation because we put the trust back in the transportation trust funds," he said. The guarantee will result in more than $200 billion in transportation spending over six years, he said, although administration officials placed the level at $198 billion.

"This legislation is going to save, the experts tell me, approximately 4,000 lives a year, not only because of the safety provisions we have in it, but because about 30 percent of our 42,000 highway fatalities each year are caused as a result of bad roads. As we improve the roads, we save lives," said Shuster.

Oberstar backed up Shuster. "This is no small accomplishment. We have been working since 1968, for 30 years, to bring the Highway Trust Fund back to the position where the revenues in are the revenues spent out and invested in the nation's transportation needs."

Chafee was more reserved in his comments. "The philosophy we had in this legislation was to repeat what took place - as far as the general philosophical approach - in ISTEA I, which passed in 1991," he said. "We have this legislation, which deals not solely with highways; it deals substantially with mass transit. Likewise, indeed, it encourages what they call 'intermodalism,' which is the blending of various methods of transportation. We believe we followed that philosophy in connection with this legislation, which sometimes we call ISTEA II."

The Department of Transportation estimates that TEA-21 will increase spending for federal-aid highways from $22.6 billion in fiscal year (FY) 1998 to almost $29 billion by FY 2002. Total spending for federal-aid highways during the six-year authorization period is $162 billion, an average of $27 billion annually.

"We believe that TEA-21, both through its programs and its funding levels, will give us a major push towards meeting our strategic goals of mobility, productivity, safety, protecting the environment and natural habitat, and national security," said Federal Highway Administrator Kenneth R. Wykle. "We are extremely happy that Congress not only preserved all of the basic elements of ISTEA but gave us additional tools to maintain and build our infrastructure for the 21st century."

Wykle said that even though the administration had concerns about earlier spending proposals, he was pleased with the guaranteed funding mechanism in TEA-21.

"Transportation - and especially highways - are key to everything we do. People must use some form of transportation to get to their jobs, their schools, their doctors, their businesses and shops, everything we do in life.

"Since transportation supports all these other areas, it should not be battling them for funding. We should be working together to support the best transportation system in the world - one that will get people to all those destinations and keep our nation as productive as possible and globally competitive. We live in a world of intense economic competition on an international scale and a world of just-in-time deliveries where a high level of investment in our highway system is absolutely essential," Wykle said.

For Taylor Bowlden, American Highway Users Alliance vice president for policy and government affairs, the guaranteed funding provision was far and away the most important part of the bill. "If it works as intended, it will be the most important thing Congress has done for the highway program in a very long time - probably since the creation of the Highway Trust Fund. It's worth much more than all the other concerns combined," said Bowlden.

TEA-21 does, in fact, leave the basic program structure created six years ago in ISTEA in tact. Unlike ISTEA, TEA-21 is not a dramatic change in direction for the highway program but a continuation with some modifications and additions. While there were wording changes in the statute, TEA-21 eliminated none of the programs created by ISTEA.

The ISTEA structure remains:

The National Highway System (NHS), including the Interstate Highway System, principal arterials, intermodal connectors, and the strategic highway network and strategic highway network connectors. TEA-21 requires the inclusion of the high-priority corridors named in ISTEA and the NHS Designation Act of 1995 after feasibility studies. Funding eligibility expanded to include natural habitat mitigation, privately owned intracity and intercity bus terminals, and infrastructure-based intelligent transportation systems (ITS) capital improvements.
The Interstate Maintenance Program for resurfacing, restoring, and rehabilitating the interstate system. TEA-21 adds reconstruction as an eligible activity but continues the prohibition on using funds to increase lanes for single-occupancy vehicles. In addition to a new apportionment formula for the distribution of funds, the bill also authorizes a discretionary program of $50 million in FY 1998 and $100 million annually for five years.
The Surface Transportation Program (STP) under which funds may be used for federal-aid highways, bridges on all public roads, transit capital projects, car-pool projects and parking lots, safety improvements, bicycle and pedestrian facilities, research, planning, and transportation control measures. TEA-21 adds funding eligibility for "environmentally acceptable, minimally corrosive anti-icing and deicing compositions," programs to reduce extreme cold starts, environmental restoration and pollution abatement projects, natural habitat mitigation, privately owned intercity buses and bus facilities, reconstruction of sidewalks required under the Americans With Disabilities Act, and infrastructure-based intelligent transportation systems (ITS) capital improvements. STP includes a suballocation of funds to urbanized areas and to rural areas and a 10-percent set-aside for transportation enhancements, such as landscaping and historic preservation. The enhancement program now includes funding eligibility for transportation museums. A 10-percent set-aside for safety construction was continued, and the set-aside for Railway-Highway Crossing Hazard Elimination in High-Speed Rail Corridors was increased from $5 million to $5.25 million annually.
The Bridge Program in which funds are distributed to states for rehabilitation and replacement of deficient bridges. The distribution formula is based on the state's relative share of the total cost to repair or replace deficient bridges. TEA-21 creates a $25 million annual seismic retrofit set-aside. The act maintains the ability of states to transfer funds from the bridge program to other programs, but if transfers take place, overall needs will be reduced by that amount the following year.
The Congestion Mitigation and Air Quality Improvement Program (CMAQ) in which funds are distributed to Clean Air Act nonattainment areas for projects to improve air quality. Under TEA-21, areas that were in nonattainment but have improved air quality will also be eligible for funds. PM-10 nonattainment and maintenance areas are also now eligible as are the areas designated as nonattainment under the 1997 revised air quality standards. Newly eligible activities include extreme-low-temperature cold-start programs and magnetic levitation deployment projects.
The planning process used by states and metropolitan planning organizations (MPOs) to develop long-range plans and transportation improvement programs that identify projects for funding. TEA-21 identifies seven areas that planning agencies shall consider - a sharp reduction from ISTEA. It continues to require metropolitan plans to be "fiscally constrained," including only projects for which funding can reasonably be expected. However, it allows the identification of projects on an "illustrative basis" to show what would be funded if more money became available.
Flexibility between the highway programs and transit. Flexibility to transfer funds between highway and transit programs was one of ISTEA's most dramatic features, and it is continued by TEA-21.

Environmental restoration projects are eligible for funding in the Surface Transportation Program.

"This structure is the one we believe will best serve all users of the transportation system," Wykle said. "It is one that has been functioning well and should be maintained. It gives the Federal Highway Administration the ability to work with states and MPOs to meet their widely varying needs."

TEA-21 designates "the safety and security of the transportation system for motorized and non-motorized users" as one of seven newly established areas to be considered in the planning process. The act continues the requirement that 10 percent of each state's STP apportionment be set aside for safety construction; this will total about $3.7 billion over six years.

While the railway-highway crossing program remains essentially unchanged, the hazard elimination program is now open to interstate highways, any public transportation facility, and any public bicycle or pedestrian pathway or trail. Traffic calming projects are specifically mentioned, and states must now include danger to bicyclists in surveys of hazardous locations.

TEA-21 restructured the National Motor Carrier Safety Program to promote performance-based activities, provide flexibility for state grants by allowing investment in areas providing the greatest potential for crash reduction based on state circumstances, strengthen federal and state enforcement tools, and provide innovative approaches to motor carrier safety.

Anti-icing and deicing compositions are funded under TEA21.

The act requires states to adopt and implement a performance-based program for the Motor Carrier Safety Assistance Program (MCSAP) by 2000. MCSAP provides funds for state enforcement of commercial motor vehicle safety and hazardous materials regulations. TEA-21 authorizes $579 million for MCSAP over six years with set-asides of up to 5 percent for national safety priorities and border safety enforcement.

The basic motor carrier act is strengthened with new enforcement tools, the closing of loopholes that permit unsafe practices, and encouragement of innovative approaches to regulations.

TEA-21 wrote several ISTEA provisions into the law as continuing programs, such as the use of "soft match," a credit that ISTEA allowed to be issued to states for the non-federal match based on transportation investment from toll revenue. For example, the state of New Jersey, the moving force behind the soft match in 1991, receives a credit for investment by the authorities that operate the New Jersey Turnpike, Garden State Parkway, and Atlantic City Expressway. The soft match was hotly disputed in 1991, but it has now been established as part of the basic highway law.

ISTEA's Congestion Pricing Pilot Program became a Value Pricing Program in TEA-21. The limitation of five projects was raised to 15, and the cap of three toll projects on interstate highways was eliminated. As in 1991, the plan is to find local officials who want to use tolls as a means of reducing congestion on a specific road or roads through the imposition of tolls.

Although TEA-21 is not a dramatic change in the basic program structure, it did create several new programs, including:

The $140 million-a-year National Corridor Planning and Development Program and Coordinated Border Infrastructure Program. The corridor program provides funds for states and MPOs to coordinate the planning, design, and construction of corridors of national significance; economic growth; and international or interregional trade. Eligibility is limited to 43 corridors designated by ISTEA, the National Highway System Designation Act of 1995, or TEA-21 and to other significant regional or multistate highway corridors selected by the secretary. The border infrastructure program will fund improvements to border facilities. Projects are to be selected based on several factors, including the expected reduction in motor vehicle travel time through an international border crossing; improvements in vehicle and highway safety and in cargo security; and strategies to increase the use of existing, underused border crossing facilities and approaches.
The Transportation Infrastructure Finance and Innovation Act (TIFIA) authorizes direct loans, lines of credit, and loan guarantees for projects of more than $100 million or in the case of an ITS project $30 million. The act authorizes $530 million to pay for the "subsidy cost" of supporting federal credit under this program. Credit instruments issued are capped at $10.6 billion over the life of the act. Federal credit assistance may be used for up to one-third of the cost of a project. Projects eligible for assistance are the ones that are eligible for federal highway or transit funding; international bridges and tunnels; intercity passenger bus and rail facilities and vehicles, including Amtrak and magnetic levitation systems; and publicly owned intermodal freight facilities on the NHS.
The Interstate System Reconstruction and Rehabilitation Pilot Program allows states to place tolls on segments of the interstate highway system that could not otherwise be adequately maintained or improved without the revenue from the tolls. The program has a limit of three projects, which must be in different states.

TEA-21 moves the ITS program from the moderate research program authorized by ISTEA to one that takes the next step toward deployment. The act authorizes almost $1.3 billion over six years for ITS with $603 million targeted to research, training, and standards development; $482 million for metropolitan and rural systems; and $184 million to deploy a commercial vehicle ITS infrastructure.

"We consider ITS to be one of the primary enablers of our highway transportation system - a supporting feature that will make the entire system more productive and efficient," he said. "We are pleased that TEA-21 will allow us to move forward with ITS deployment so that we can create a coordinated national system. ITS can help eliminate congestion in metropolitan areas, improve safety in rural areas, and improve the safety and efficiency of commercial motor vehicle operations."

In addition to the increase in funding, the act directs the secretary of transportation to develop, implement, and maintain a national architecture and standards for ITS systems. The goal of the architecture and standards will be to ensure that different ITS systems are compatible and can be integrated. In a move that was pushed by the Department of Transportation (DOT), federal funding for ITS projects is tied directly to adherence to the architecture and standards. Federal funding will be denied to projects that do not conform.

John J. Collins, president and chief executive officer of ITS America, said, "We're very excited about the bill. It provides structure and definition for the ITS program. This is the coming of age of ITS. It is being taken out of the hothouse and being planted in the real world."

Surface Transportation Plan includes funding for pedestrian and bicycle facilities.

He said the bill will result in the "mainstreaming" of ITS into the highway and transit programs by clarifying that ITS is eligible for NHS and STP funding. In addition, ITS is also an eligible CMAQ expense.

"We have the mainstreaming. We have $1.2 billion in guaranteed funds only for ITS research and deployment, and we have strong instructions from Congress that if money is used on ITS projects, they must meet the architecture and standards. We have both the carrot with new funding opportunities and the stick with the architecture and standards requirement," Collins said.

"ITS systems will be able to talk to each other. Transportation users will be able to see the results. ITS is using technology on transportation to save lives, time, and money. It's not one technology but a whole set of technologies that can expand the efficiency of the entire system," he said. Wykle said another important initiative in the bill is its attempt to use new and innovative procedures to make project delivery faster and more cost-efficient.

"We hope we can use these provisions to build on the steps we've taken at the Federal Highway Administration to cut through the red tape and paperwork and get the projects built," he said.

Allowing the use of design-build for projects of more than $50 million - or $5 million for ITS projects. The provision directs regulations to be issued that will take effect in three years although it allows approval of projects on an experimental basis before that. With design-build, the same contractor designs and builds the projects without an intervening bid process.
The use of life-cycle costs. The transportation secretary is required to develop recommendations for the states to develop life-cycle-cost analyses. Life-cycle costs determine the cost of a project for its entire life instead of just the construction cost.
A coordinated environmental review process establishing a procedure for the secretary to sign a memorandum of understanding with other agencies with a schedule for concurrent environmental reviews. The congressional conferees noted that DOT has attempted to address the problem, but they said legislation was needed. "Better and earlier coordination among the agencies involved in the decision-making process for highway projects should help reduce conflicts and their associated delays," they said.

Roy Kienitz, director of the Surface Transportation Policy Project, an organization of environmental groups and transit advocates, called the bill a success because it maintained the "four big ideas" of ISTEA: flexibility; a strong role for local and public participation in planning; dedication to transportation alternatives, such as transit and CMAQ; and system preservation.

Bridge Program distributes funds for rehabilitation and replacement of deficient bridges.

"We were successful on all four of these fronts," Kienitz said. "Planning has changed, but public participation has remained. Flexibility is still there; the percentage guaranteed for transit is higher than in the last bill; and we have kept system preservation by maintaining the Interstate Maintenance and Bridge programs."

He said the bill follows ISTEA closely. "I feel like we defended ISTEA. A program passed by a Democratic Congress and signed by a Republican president has now been passed by a Republican Congress and signed by a Democratic president. If you liked ISTEA, you'll like this bill because this is ISTEA. If you didn't like ISTEA because you thought it wasn't good enough, you won't like this bill because this is essentially ISTEA," he said.

From different perspectives, Kienitz and Bowlden will be tabulating the results and making their determination on whether the bill is really a success.

"We have protected the most important features. Spending for new roads is down, and the percentage is going up for safety, environmental protection, transit, and fixing existing roads," Kienetz said. Bowlden is also making calculations. "One of our priorities was to get a higher portion of highway program funds earmarked for high-priority projects - NHS; the Bridge Program; safety, which was increased; research and development; and federal lands highway, which was increased significantly. In ISTEA, these programs received 50 percent of the funding. TEA-21 compares fairly well in terms of money for our priority areas."

David Smallen is the president and chief executive officer of David Smallen Associates, a consulting/writing/editing company in Washington, D.C. For 14 years, he served on Capitol Hill, starting as press secretary and then director of communications for the House Committee on Public Works and Transportation, as senior staff member of the House Subcommittee on Investigations and Oversight. Before that, he was a newspaper and news service reporter. He has a bachelor's degree from Duke University, and he attended the graduate school of journalism at the University of North Carolina.