B-198986.OM, JUL 24, 1980

B-198986.OM, JUL 24, 1980

SUBJECT: THE EXTENT OF MAINTENANCE REQUIRED OF THE STATES FOR FEDERALLY FUNDED HIGHWAYS (FILE B-198986; CODE 342732)

TEAM LEADER, CED - MEL MENCH:

GAO AUDIT STAFF HAVE DISCUSSED WITH FEDERAL HIGHWAY ADMINISTRATION (FHWA) OFFICIALS THE FHWA'S POSITION ON THE STATES' DUTY TO MAINTAIN FEDERALLY FUNDED HIGHWAYS. THE FHWA BELIEVES THAT 23 U.S.C. SEC. 116(C) DOES NOT AUTHORIZE IT TO FORCE A STATE TO TAKE ACTION UNLESS THE ROAD IS IN AN UNSAFE OR UNSERVICEABLE CONDITION. THIS POSITION IS BASED UPON THE DEFINITION OF "MAINTENANCE" IN 23 U.S.C. SEC. 101(A). YOU ASKED IF WE AGREED WITH THIS POSITION. WE DO NOT, AS LONG AS ALL THE ROAD REQUIRES IS ROUTINE MAINTENANCE. ON THE OTHER HAND, THE FHWA CANNOT COMPEL A STATE TO PERFORM RESURFACING, RESTORATION OR REHABILITATION (3-R WORK) EVEN IF THAT WERE THE NATURE OF WORK REQUIRED TO BRING A DETERIORATED ROAD TO A SAFE OR SERVICEABLE CONDITION.

QUESTION 1: DOES THE TERM MAINTENANCE AS DEFINED BY 23 U.S.C. SEC. 101(A) GIVE THE FHWA A LEGAL BASIS TO SUPPORT A SANCTION AGAINST A STATE FOR POOR ROAD MAINTENANCE ONLY WHEN THE ROAD HAS DETERIORATED TO AN UNSAFE OR UNSERVICEABLE CONDITION?

ANSWER 1: THE DEFINITION OF MAINTENANCE GIVEN IN SECTION 101(A) IS A RESTATEMENT OF AN EARLIER DEFINITION CONTAINED IN SECTION 2 OF THE 1921 GOOD ROADS ACT. THIS DEFINITION REQUIRED "THE CONSTANT MAKING OF NEEDED REPAIRS TO PERSERVE A SMOOTH SURFACED HIGHWAY." THE CONGRESSIONAL INTENT BEHIND THIS PROVISION WAS THAT THE STATE KEEP THE ROADS BUILT WITH FEDERAL AID IN GOOD REPAIR AT ALL TIMES THROUGHOUT THE YEAR. THIS INTENT CANNOT SUPPORT THE FHWA'S CONTENTION THAT THE STATE IS UNDER A DUTY TO REPAIR OR MAINTAIN A ROAD ONLY WHEN THE ROAD HAS FALLEN TO SUCH A STATE OF DISREPAIR AS TO BE UNSAFE OR UNSERVICEABLE.

QUESTION 2: DOES THE FHWA'S POWER TO COMPEL A STATE TO MAINTAIN ROADS IN CONTINUAL GOOD REPAIR, AS EXPLAINED IN ANSWER 1, ALSO GIVE IT THE AUTHORITY TO FORCE A STATE TO UNDERTAKE THE RESURFACING, RESTORATION AND REHABILITATION REQUIRED BY SOME ROADS TO PUT THEM IN A SAFE OR SERVICEABLE CONDITION?

ANSWER 2: 23 U.S.C. SEC. 116(C) GIVES THE FHWA THE POWER TO COMPEL ONLY ROUTINE MAINTENANCE WORK. RESURFACING, RESTORATION AND REHABILITATION IS DEFINED SEPARATELY IN 23 U.S.C. SEC. 101(A) AS "CONSTRUCTION." IN MAKING THIS DISTINCTION BETWEEN 3-R WORK AS CONSTRUCTION AND OTHER ROAD WORK AS MAINTENANCE, CONGRESS, FIRST, WISHED TO PROVIDE A RATIONALE FOR THE PAYMENT OF FEDERAL FUNDS FOR THE FORMER AND SECOND, WISHED TO ESTABLISH THAT THE STATES HAD GREATER AUTONOMY WITH 3-R WORK THAN THEY DID WITH THE LATTER. IT WOULD BE CONTRARY TO THE PROVISIONS OF SECTION 101(A) AND THE CONGRESSIONAL INTENT BEHIND IT FOR THE FHWA TO ATTEMPT TO FORCE A STATE TO UNDERTAKE THE RESURFACING, RESTORATION OR REHABILITATION OF ITS ROADS.

ATTACHED IS AN ANALYSIS THAT MORE FULLY DISCUSSES THESE MATTERS.

ATTACHMENT

THE LEVEL OF MAINTENANCE REQUIRED OF THE STATES FOR FEDERALLY FUNDED HIGHWAYS

DIGESTS:

1. SECTION 101(A) OF TITLE 23 OF U.S.C. IS A RESTATEMENT OF SECTION 2 OF 1921 GOOD ROADS ACT, 42 STAT. 212, WHICH DEFINED MAINTENANCE AS THE CONSTANT MAKING OF NEEDED REPAIRS. ORIGINAL CONGRESSIONAL INTENT THAT ROADS BE CONTINUALLY PRESERVED IN GOOD CONDITION HAS BEEN RETAINED BY 23 U.S.C. SEC. 101(A) DEFINITION. THUS, FHWA MAY REQUIRE A STATE, UNDER 23 U.S.C. SEC. 116(C), TO FULFILL ITS DUTY TO MAINTAIN FEDERALLY FUNDED HIGHWAYS AT A POINT BEFORE HIGHWAYS HAVE DETERIORATED TO AN UNSAFE OR UNSERVICEABLE CONDITION.

2. ALTHOUGH FHWA HAS AUTHORITY UNDER 23 U.S.C. SEC. 116(C) TO COMPEL A STATE TO PERFORM ROUTINE MAINTENANCE SO AS TO KEEP ITS ROADS IN CONSTANT GOOD REPAIR, FHWA CANNOT FORCE A STATE TO RESURFACE, RESTORE OR REHABILITATE ROADS, EVEN IF THEY ARE UNSAFE OR UNSERVICEABLE. CHARACTERIZING RESURFACING, RESTORATION AND REHABILITATION (3-R WORK) AS CONSTRUCTION, NOT MAINTENANCE, BY 23 U.S.C. SEC. 101(A), CONGRESS INTENDED THAT THE STATES HAVE MAXIMUM FLEXIBILITY IN DEALING WITH 3-R WORK.

DISCUSSION:

QUESTION 1: DOES THE TERM MAINTENANCE AS DEFINED BY 23 U.S.C. SEC. 101(A) GIVE THE FHWA A LEGAL BASIS TO SUPPORT A SANCTION AGAINST A STATE FOR POOR ROAD MAINTENANCE ONLY WHEN THE ROAD HAS DETERIORATED TO AN UNSAFE OR UNSERVICEABLE CONDITION?

ANSWER 1: SECTION 116(C) OF TITLE 23 OF THE U.S.C. PROVIDES IN PART THAT:

"IF AT ANY TIME THE SECRETARY SHALL FIND THAT ANY PROJECT CONSTRUCTED UNDER THE PROVISIONS OF THIS CHAPTER, OR CONSTRUCTED UNDER THE PROVISIONS OF PRIOR ACTS, IS NOT BEING PROPERLY MAINTAINED, HE SHALL CALL SUCH FACT TO THE ATTENTION OF THE STATE HIGHWAY DEPARTMENT. IF, WITHIN NINETY DAYS AFTER RECEIPT OF SUCH NOTICE, SUCH PROJECT HAS NOT BEEN PUT IN PROPER CONDITION OF MAINTENANCE, THE SECRETARY SHALL WITHHOLD APPROVAL OF FURTHER PROJECTS OF ALL TYPES IN THE ENTIRE STATE UNTIL SUCH PROJECT SHALL HAVE BEEN PUT IN PROPER CONDITION OR MAINTENANCE ***."

SECTION 101(A) OF TITLE 23 OF THE U.S.C. PROVIDES THAT:

"THE TERM 'MAINTENANCE' MEANS THE PRESERVATION OF THE ENTIRE HIGHWAY, INCLUDING SURFACE, SHOULDERS, ROADSIDES, STRUCTURES, AND SUCH TRAFFIC- CONTROL DEVICES AS ARE NECESSARY FOR ITS SAFE AND EFFICIENT UTILIZATION."

THIS STATUTE DEFINING MAINTENANCE WAS ENACTED IN 1958 AS A PART OF PUB. L. 85-767, 72 STAT. 885, A TOTAL REVISION OF THE FEDERAL HIGHWAY LAWS. THE COMMITTEE ON PUBLIC WORKS OF THE HOUSE OF REPRESENTATIVES EXPLAINED IN ITS REPORT ON THIS BILL:

"REVISION, AS DISTINGUISHED FROM CODIFICATION, MEANS THE SUBSTITUTION OF PLAIN LANGUAGE FOR AWKWARD TERMS, RECONCILIATION OF CONFLICTING LAWS, OMISSION OF SUPERSEDED SECTIONS, AND CONSOLIDATION OF SIMILAR PROVISIONS. THE PURPOSE OF THIS REVISION IS NOT TO CHANGE SUBSTANTIVE LAW, BUT TO PUT THAT LAW IN A FORM WHICH WILL BE MORE USEFUL AND UNDERSTANDABLE." H.R. REP. NO. 1938, 85TH CONG., 2D SESS. 1 (1958).

THEN FEDERAL HIGHWAY ADMINISTRATOR, HONORABLE BERTRAM D. TALLAMY, EXPLAINED WHY SOME CHANGES WERE MADE IN THE BILL BY STATING THAT:

"IN BRINGING THE PROVISIONS OF EXISTING LAW TOGETHER IN A MORE LOGICAL ARRANGEMENT, IT WAS FOUND NECESSARY IN MANY INSTANCES, TO MAKE CHANGES FROM THE EXACT LANGUAGE USED IN PRIOR ENACTMENTS. THESE CHANGES WERE NOT INTENDED, HOWEVER, TO CHANGE THE MEANING OF EXISTING LAWS." BRIDGES, HIGHWAYS, AND FLOOD CONTROL MISCELLANEOUS PROJECTS: HEARINGS ON S. 3953 BEFORE THE SUBCOMMITTEE ON PUBLIC WORKS, 85TH CONG., 2D SESS. 1 (1958) (STATEMENT OF BERTRAM D. TALLAMY).

THUS, WHILE TITLE 23 CONTAINS CERTAIN TECHNICAL REFINEMENTS AND LANGUAGE CHANGES, THESE ALTERATIONS OF THE EARLIER PROVISIONS WERE MADE ONLY IN ORDER TO CONFORM TO EXISTING PRACTICES AND PROCEDURES, AND WERE NOT INTENDED TO CHANGE ANY OF THE FUNDAMENTAL AND UNDERLYING CONCEPTS OF ALREADY EXISTING FEDERAL HIGHWAY LEGISLATION.

THE SECTION 101(A) DEFINITION OF MAINTENANCE WAS DRAWN FROM SECTION 2 OF THE 1921 ACT, 42 STAT. 212, WHICH PROVIDES IN PART:

"THE TERM 'MAINTENANCE' MEANS THE CONSTANT MAKING OF NEEDED REPAIRS TO PERSERVE A SMOOTH SURFACED HIGHWAY."

THE PLAIN IMPORT OF THESE WORDS WOULD SIGNIFY THAT MAINTENANCE SHOULD BE MORE A MATTER OF CONTINUING PRESERVATION THAN RESTORATION ONLY WHEN THE ROAD IS UNSAFE OR UNSERVICEABLE. AN EXAMINATION OF THE LEGISLATIVE HISTORY SHOWS THAT THIS ORIGINAL MEANING SHOULD BE APPLIED TO THE PRESENT DEFINITION AS WELL.

AS NOTED ABOVE, THE REVISION OF THE HIGHWAY PROVISIONS WAS NOT INTENDED TO ALTER THE SUBSTANCE OF THE PRIOR LAWS. THE LANGUAGE OF THE CURRENT PROVISION, SECTION 101(A), DOES DIFFER GREATLY FROM ITS PREDECESSOR. THE SENATE HEARING, IT WAS NOTED THAT TECHNICALLY THIS CONSTITUTED SUBSTANTIVE CHANGE SINCE MAINTENANCE WAS EXTENDED TO ALSO COVER THE SHOULDERS, TRAFFIC CONTROL DEVICES AND SO ON. THIS CHANGE, HOWEVER, WAS CHARACTERIZED AS "A MINOR CHANGE," REFLECTING THE CURRENT PRACTICE OF MAINTAINING THE ENTIRE HIGHWAY. BOTH THE HOUSE AND THE SENATE REPORTS, IN A COMPARISON OF SECTION 101(A) WITH THE 1921 ACT, EXPLAINED THAT THE NEW LANGUAGE ONLY "MODERNIZES THE EXISTING DEFINITION." S. REP. NO. 1928, 85TH CONG., 2D SESS. 1 (1958). WHILE THE COVERAGE OF THIS STATUTE HAS BEEN BROADENED, ITS MEANING, THE SUBSTANCE OF THE ORIGINAL PROVISION, HAS REMAINED UNCHANGED. THEREFORE, IT MAY BE CONCLUDED THAT THE 1921 ACT STILL CONSTITUTES THE BASIS FROM WHICH THE INTENT OF THE LEGISLATION MAY BE DERIVED.

THE 1921 ACT WAS INITIATED IN RESPONSE TO PRESIDENT HARDING'S MESSAGE TO CONGRESS IN WHICH HE SAID:

"I KNOW OF NOTHING MORE SHOCKING THAN THE MILLIONS OF PUBLIC FUNDS WASTED IN IMPROVED HIGHWAYS, WASTED BECAUSE THERE IS NO POLICY OF MAINTENANCE *** THERE IS NOTHING THE CONGRESS CAN DO MORE EFFECTIVELY TO END THIS SHOCKING WASTE THEN CONDITION ALL FEDERAL AID ON PROVISIONS FOR MAINTENANCE. HIGHWAYS, NO MATTER HOW GENEROUS THE OUTLAY FOR CONSTRUCTION, CANNOT BE MAINTAINED WITHOUT PATROL AND CONSTANT REPAIR." 61 CONG. REC. 7126 (1921).

AS THE PRESIDENT URGED, CONGRESS IMPOSED A MAINTENANCE REQUIREMENT ON THE STATES IN SECTION 14 OF THE 1921 ACT. THE HIGH STANDARD OF MAINTENANCE EXPECTED BY CONGRESS IS EXPRESSED NOT ONLY BY THE SECTION 2 DEFINITION, BUT ALSO BY STATEMENTS MADE DURING SENATE DEBATE. SENATOR ROBSION STATED:

"THIS BILL PROVIDES THAT THE STATE MUST KEEP THESE ROADS IN GOOD REPAIR AT ALL TIMES THROUGHOUT THE YEAR WHEN ONCE BUILT WITH FEDERAL AID. MEANS THAT WHEN WE ONCE GET A GOOD ROAD WE WILL ALWAYS HAVE A GOOD ROAD." ID., AT 7121.

IT WAS ALSO POINTED OUT THAT:

"TO USE THE TAXPAYERS' MONEY TO CONSTRUCT A GOOD ROAD AND THEN STAND BY WHILE IT IS TORN DOWN IS WASTE." ID., AT 3091.

SENATOR HARRISON VOICED THE BELIEF THAT MAINTENANCE REQUIRES THE CONSTANT CARE OF THE ROADS SO THAT THEY CONTINUALLY WOULD BE IN GOOD CONDITION. STATED THAT:

"THE COST OF MAINTENANCE APPLIED ON THE DOCTRINE OF 'A STITCH IN TIME SAVES NINE' IS A PRINCIPLE THAT OUGHT TO BE FIRMLY EMBODIED IN ALL NEW ROAD CONSTRUCTION. A LITTLE MONEY EXPENDED ON KEEPING THE ROAD IN FIRST- CLASS CONDITION WILL SAVE THOUSANDS OF DOLLARS." ID., AT 8348.

FROM THIS ANALYSIS IT MAY BE CONCLUDED THAT THE FHWA'S INTERPRETATION OF THE TERM "MAINTENANCE" IS TOO LENIENT. IN REQUIRING THE STATES TO MAINTAIN THESE FEDERALLY FUNDED ROADS, CONGRESS INTENDED THAT THIS MAINTENANCE WOULD PRESERVE THE ROADS IN GOOD CONDITION. THE PURPOSE BEHIND THIS PROVISION WAS TO ASSURE THAT THE STATES REPAIR THE ROADS BEFORE THEY DETERIORATE TO AN UNSAFE OR UNSERVICEABLE CONDITION. THEREFORE, IT IS NOT REASONABLE FOR THE FHWA TO WAIT UNTIL THE ROADS FALL INTO SUCH A STATE OF DISREPAIR AS TO BE UNSAFE OR UNSERVICEABLE BEFORE TAKING ACTION UNDER 23 U.S.C. SEC. 116(A).

WE SPOKE WITH MR. HUGH T. O'REILLY, ASSISTANT CHIEF COUNSEL FOR THE FHWA, ON JULY 7, 1980. HE CONFIRMED THE FHWA'S POSITION THAT NO ACTION UNDER SECTION 116(C) SHOULD BE TAKEN AGAINST A STATE UNLESS ITS ROADS HAD VERY SERIOUSLY DETERIORATED. OUR INTERPRETATION, HOWEVER, LEADS TO THE CONCLUSION THAT FHWA SHOULD INFORM THE STATES THAT IT WILL ENFORCE SECTION 116(C) IF THEY DO NOT MEET THE STANDARD OF MAINTENANCE SET FORTH ABOVE.

QUESTION 2: DOES THE FHWA'S POWER TO COMPEL A STATE TO MAINTAIN ROADS IN CONTINUAL GOOD REPAIR, AS EXPLAINED IN ANSWER 1, ALSO GIVE IT THE AUTHORITY TO FORCE A STATE TO UNDERTAKE THE RESURFACING, RESTORATION AND REHABILITATION (3-R WORK) REQUIRED BY SOME ROADS TO PUT THEM IN A SAFE OR SERVICEABLE CONDITION?

ANSWER 1: A PROBLEM WITH THE FIRST ANSWER'S DEFINITION OF MAINTENANCE PRESENTS ITSELF IN INSTANCES WHERE A ROAD HAS DETERIORATED IN SUCH A WAY THAT ONLY RESURFACING, RESTORATION AND/OR REHABILITATION COULD RETURN IT TO A SAFE OR SERVICEABLE CONDITION. IN THESE CIRCUMSTANCES THE QUESTION ARISES WHETHER THE FHWA, USING 23 U.S.C. SEC. 116(C), MAY FORCE THE STATE TO UNDERTAKE 3-R WORK ON SUCH ROADS.

ALTHOUGH IT MAY BE ARGUED THAT 3-R WORK MAY BE NECESSARY TO "PROPERLY MAINTAIN" SOME ROADS, THE FHWA DOES NOT HAVE THE AUTHORITY TO REQUIRE SUCH WORK FROM THE STATE. THIS TYPE OF WORK HAS BEEN CLASSIFIED AS CONSTRUCTION, NOT MAINTENANCE. THUS, IT DOES NOT COME WITHIN THE AMBIT OF SECTION 116(C). IN 1976, 23 U.S.C. SEC. 101(A) WAS AMENDED BY PUB. L. 94-280, SEC. 108 (1976), TO SAY:

"THE TERM 'CONSTRUCTION' MEANS THE SUPERVISING, INSPECTING, ACTUAL BUILDING, AND ALL EXPENSES INCIDENTAL TO THE CONSTRUCTION OR RECONSTRUCTION OF A HIGHWAY, INCLUDING *** RESURFACING, RESTORATION, AND REHABILITATION ***."

BY INCLUDING RESURFACING, RESTORATION AND REHABILITATION WITHIN THE SECTION 101(A) DEFINITION OF CONSTRUCTION, CONGRESS MADE FEDERAL FUNDS AVAILABLE FOR THAT TYPE OF HIGHWAY WORK. THIS PROVISION, WHICH ALSO INCLUDES THE DEFINITION OF MAINTENANCE DISCUSSED ABOVE, INDICATES THAT 3-R WORK AND MAINTENANCE ARE TWO DISTINCT MATTERS. THE LEGISLATIVE HISTORY OF THE 1976 AMENDMENT SUPPORTS THIS DISTINCTION. SEVERAL TIMES IT WAS NOTED THAT:

"THIS CHANGE CONFIRMS POLICY ESTABLISHED BY THE FEDERAL HIGHWAY ADMINISTRATION, AND EVIDENCES NO INTENT TO FUND NORMAL PERIODIC MAINTENANCE ACTIVITIES WHICH REMAIN A STATE RESPONSIBILITY." H.R. REP. NO. 94-716, 94TH CONG., 2D SESS., 43; S. REP. NO. 94-741, 94TH CONG., 2D SESS. 43. THE LEGISLATIVE HISTORY DEMONSTRATES THAT CONGRESS INTENDED THIS 3-R CATEGORY TO BE TREATED DIFFERENTLY AS WELL.

"THIS CHANGE IS INTENDED TO CLARIFY EXISTING POLICY ON USE OF FEDERAL-AID FUNDS FOR MAKING IMPROVEMENTS ON HIGHWAYS ALREADY IN PLACE. IT WILL ALLOW MAXIMUM FLEXIBILITY IN THE USE OF FEDERAL FUNDS TO MEET PRIORITY NEEDS DETERMINED BY RESPONSIBLE STATE OFFICIALS." S. REP. NO. 94-485, 94TH CONG., 1ST SESS. 7.

THUS, 3-R WORK MAY BE CHARACTERIZED AS ROAD IMPROVEMENT, AS DISTINGUISHED FROM ROUTINE MAINTENANCE WORK. THIS LEAVES THE FHWA WITH POWER ONLY OVER THE STATES' NORMAL, PERIODICAL MAINTENANCE ACTIVITIES UNDER SECTION 116(C). CONSEQUENTLY, THE STATES HAVE GREATER CONTROL OVER 3-R WORK, AND IT WOULD BE CONTRARY TO THE PROVISIONS AND THE INTENT OF 23 U.S.C. SEC. 101(A), AS AMENDED, FOR THE FHWA TO ATTEMPT TO FORCE A STATE TO PERFORM 3- R WORK.