Introduction Federal aid to highways is provided through highway programs administered by the Federal Highway Administration (FHWA). These programs and activities are authorized as part of multiyear surface transportation reauthorization acts. The Fixing America's Surface Transportation Act (FAST Act; P.L. 114-94 ) authorized federal highway spending from FY2016 through September 30, 2020. This report examines the major highway issues Congress will likely consider during reauthorization. Background There are over 4 million miles of public roads in the United States, of which roughly 25% are eligible for federal aid. These eligible roads, designated federal-aid highways, include all of the nation's major roads. Federal highway funds generally cannot be spent on local roads, neighborhood streets, or minor rural collectors. The federal government provides funds to the states and territories for the building and improvement of eligible roads under the Federal-Aid Highway Program. The major characteristics of this program have been constant since the early 1920s. Most funds are apportioned to the states by formulas established in law. State departments of transportation largely determine which projects are funded, award the contracts, and oversee project development and construction. The states are required to pay 20% of the cost of non-Interstate System road projects and 10% for Interstate System projects. Federal assistance is focused on construction, and may not be used to fund operating costs or routine maintenance activities. The five-year FAST Act authorized a total of $225 billion for highways from FY2016 to FY2020. It provided for modest annual increases in federal highway spending over that period ( Figure 1 ). Apportioned (Formula) and Allocated (Discretionary) Programs Apportionment is the distribution of funds among the states by statutory formula. Under the FAST Act, roughly 93% of federal highway funds were apportioned to the states ( Figure 2 ). The remaining sums were allocated for roads on federally owned lands or Indian reservations, for discretionary highway grants awarded by the U.S. Department of Transportation (DOT), and for FHWA administrative expenses. Historically, many discretionary programs were established by Congress to target specific policy objectives, such as promoting bridge construction. However, from the late 1990s until 2011, nearly all competitive grant program funds were earmarked, that is, directed to projects specified by Congress in authorization or appropriations acts. Earmarks have not been permitted since 2011. Formulas and Apportionments The apportioned programs within the Federal-Aid Highway Program include five "core" programs plus the Metropolitan Planning Program. The core programs are the National Highway Performance Program (NHPP), the Surface Transportation Block Grant Program (STBG), the Highway Safety Improvement Program (HSIP), the Congestion Mitigation and Air Quality Improvement Program (CMAQ), and the National Highway Freight Program (NHFP). The FAST Act does not use separate formulas to determine each state's apportionments under each core program. Instead, all the formula programs under the FAST Act are funded from a single annual authorization. From this amount, every state receives a single gross apportionment that is calculated based on the state's share of the FY2015 apportionments. Each state is then guaranteed that its apportionment represents at least a return of 95 cents for every dollar the state contributed to the highway account of the Highway Trust Fund (HTF), the mechanism through which formula funding is distributed to the states. Each state's total apportionment is then divided among the five formula programs and the Metropolitan Planning Program according to statute. Figure 3 charts the nationwide outcome of the distribution among the programs. Selected Highway Reauthorization Issues Funding The FAST Act provided an annual average of $45 billion for highways, about 10% more (unadjusted for inflation) than the annual average under the previous authorization bill, the two-year Moving Ahead for Progress in the 21 st Century Act (MAP-21; P.L. 112-141 ).The America's Transportation Infrastructure Act of 2019 ( S. 2302 ), reported by the Senate Environment and Public Works Committee on August 1, 2019, would provide a roughly 27% increase above the FAST Act authorizations. With the United States building few entirely new highways, the condition of existing highway infrastructure is a key issue in determining funding needs. FHWA's most recent biennial Conditions and Performance (C&P) report, drawing on FY2014 data, showed a mixed picture of the federal-aid system: the share of vehicle miles traveled (VMT) on pavements with good ride quality rose from 44.2% in 2004 to 47.0% in 2014, but the share of VMT on pavements with poor ride quality also increased, from 15.1% to 17.3%, over that period. The Interstate Highways were the road category in the best condition. Based on FY2014 data, the C&P report found that annual spending, $105.4 billion on all public roads from all sources of government, was more than sufficient to sustain the system condition and performance at the current level through 2034. Given the subsequent spending increases under the FAST Act, highway and bridge conditions may be better today than reflected in the FY2014 data. The C&P report also estimated the cost of completing all proposed work on federal-aid highways for which the benefits are expected to exceed the costs. The report found that annual spending by all levels of government would need to be roughly 30% higher than the 2014 level through 2034 if all such improvements were to be funded. Highway Trust Fund Issues Rather than appropriating funds annually, Congress has funded federal-aid highway programs through the HTF. The HTF is able to receive revenue from dedicated taxes and spend it on highways and public transportation prior to an appropriation; a mechanism called the obligation limit, included in the authorization act and appropriations acts, caps the amount of highway funding FHWA can promise the states in any year. About 85%-90% of the tax revenues that flow into the HTF are from an 18.3 cents-per-gallon tax on gasoline and a 24.3 cents-per-gallon tax on diesel fuel, with the remainder coming mainly from taxes on sales of trucks and truck tires as well as a heavy vehicle use tax. The HTF has two separate accounts, one for highway programs and the other for public transportation. The highway account, which funds the Federal-Aid Highway Program, much of the budget of the National Highway Traffic Safety Administration, and the entire budget of the Federal Motor Carrier Safety Administration, receives 15.4 cents per gallon from the gasoline tax and 21.4 cents per gallon from the diesel fuel tax, as well as all of the revenue from the taxes imposed on trucks and truck use. The reliance of the HTF on the gasoline and diesel taxes has become problematic because tax receipts do not increase with inflation in highway construction costs or with the price of fuel. The rates have not been increased since 1993. In 2018 a gasoline tax of approximately 45 cents per gallon would have been needed to equal the purchasing power of the 18.3-cents-per-gallon gasoline tax in 1998. In addition, sluggish growth in vehicle travel and improved vehicle efficiency have depressed the growth of gallons consumed, further constraining revenues. Since 2008, Congress has transferred nearly $144 billion to the HTF ($114.7 billion to the highway account alone) from the Treasury general fund and other sources in order to fill the gap between the tax revenue flowing into the fund and the outlays Congress has authorized. Despite these transfers, without a reduction in the size of the surface transportation programs, an increase in revenues, or further general fund transfers, the highway account balance in the HTF is projected to be close to zero in the first month of FY2022. At that point, FHWA would likely have to delay payments to state departments of transportation for completed work. The closures and stay-at-home orders implemented in response to the COVID-19 pandemic may make the HTF's funding shortfall more severe. As many employers closed or shifted to telework and fewer Americans drove to work, gasoline tax revenues will likely fall below projections. If states continue road projects as planned, the highway account balance could approach zero sooner than previously expected unless Congress provides additional funds. The Congressional Budget Office (CBO) projects that HTF highway account outlays (spending) will continue to outpace revenues through F2026 ( Figure 4 ) under current law. This projection, made prior to the COVID-19-related shutdowns, estimates that in funding a five five-year reauthorization beginning in FY2021 Congress faces a projected highway account shortfall of $46.5 billion. This is the amount of additional revenue Congress would need to provide to the HTF, whether from increased taxes, transfers from the general fund, or other sources, in order to avoid reducing the scope of the highway program. These are the amounts that the Senate Finance Committee and the House Ways and Means Committee would have to deal with if Congress decides to fund reauthorization at current levels plus expected inflation. CBO's March 2020 projection did not consider the impact of COVID-19 on HTF revenues and spending. Consequently, a major reauthorization issue is assuring that the HTF has sufficient resources over the life of the act to pay for the authorizations Congress provides. The options include the following: Continue Transfers from the General Fund Since 2008 Congress has had a de facto policy of dealing with the HTF shortfall via transfers, mostly from the Treasury general fund, weakening the long-standing link between highway user revenues and the construction and maintenance of highways. Congress could continue this policy in a reauthorization act or make the policy permanent. In the recent past, a rule of the House of Representatives has required Congress to identify "offsets" in the form of other revenues or spending reductions equal to the amounts transferred from the general fund to the HTF. This requirement has not been a House rule since January 2019. Reduce Spending from the HTF Congress could reduce spending on the Federal-Aid Highway Program. To bring outlays into line with anticipated revenues, the needed reduction would be roughly 25%. Rather than reducing highway outlays, Congress could eliminate the HTF's mass transit account and use all HTF revenues for highway purposes only, leaving public transportation to be funded entirely from the general fund. However, even if all HTF revenues were dedicated to highways, the HTF is projected to face annual shortfalls beginning in FY2024. According to CBO, annual HTF revenue is projected to be almost $20 billion less than the cost of maintaining the present level of highway spending, adjusted for inflation, in FY2026, even if no HTF money goes to public transportation. Congress could make a major reduction in federal funding by devolving responsibility for highways to the states and reducing federal motor fuel and truck taxes accordingly. States could then raise their own highway revenues or reduce spending as they see fit. The challenge of making these adjustments would vary greatly from state to state. Devolution would have significant federal front-end costs, as the federal government would remain obligated to reimburse the states for highway projects committed to in previous years. Increase Tax Revenue Dedicated to the HTF Although there is a wide variety of revenue sources that could be used to provide revenues to the HTF, the four that have received significant interest in Congress in recent years are: raising the gasoline and diesel tax rates; imposing a vehicle miles traveled (VMT) charge; imposing a carbon tax; and taxing electric vehicles. The gasoline and diesel taxes could be raised enough to make up for loss of purchasing power and then be adjusted annually for inflation and fuel efficiency. Based upon the current level of fuel consumption, an initial increase of fuel taxes in the range of 10 cents to 15 cents per gallon would be required to fund highway and public transportation programs at their current levels, adjusted for anticipated inflation. Electric vehicles (EVs), which currently do not contribute to the HTF, could be charged for road use. Finding an efficient way for the federal government to tax EVs presents a challenge, as it does not collect information about their ownership or use. Some recent proposals would use the personal income tax to reach EV owners, rather than taxing the vehicles based on use. Approximately 1.5 million EVs are currently in use, according to the Edison Electric Institute, so an annual fee approximating the roughly $80 in federal fuel taxes paid for the average passenger vehicle each year would raise comparatively little revenue over the life of a five-year reauthorization act. Charging vehicle owners for each mile of travel has been discussed for many years as an alternative to the motor fuel taxes. However, a VMT charge would have relatively high collection and enforcement costs (estimates range from 5% to 13% of collections) and the administrative challenge of collecting the charge from roughly 268 million vehicles. Setting and adjusting VMT rates would likely be as controversial as increasing motor fuel taxes. Imposing a VMT on heavy trucks only, as has been done in Germany, might be less onerous to implement because it would involve a much smaller number of collection points. A truck-only VMT concept has already run into stiff opposition from trucking interests. A national VMT on heavy trucks could also face tax administrative issues. The payments to Toll Collect, the contractor that collects Germany's truck VMT charge, are estimated to be as high as 13% of annual revenues. A carbon tax could be assessed on emissions of carbon dioxide and other greenhouse gases, with a share of the revenue dedicated to federal transportation programs. In December 2019, CBO estimated that a carbon tax of $25 per metric ton would increase federal revenues by $1.1 trillion between 2019 and 2028.The effect on the HTF would depend on the design of the tax and how much of the revenue would be reserved for the HTF. Tolling Federal law permits the vast majority of roads in the United States to be converted to toll roads. However, the law bans the tolling of existing Interstate System highway lane capacity. For an existing road or bridge to be converted to a toll facility, it must be reconstructed or replaced. FHWA does not regulate toll rates, but it does enforce statutory limitations on the use of toll revenues. In general, these limitations require that a toll facility's revenues be spent on the toll facility. All revenue from tolls flows to the state or local agencies or private entities that operate tolled facilities; the federal government does not collect any revenue from tolls. While tolls may be an effective way of financing specific facilitiesâespecially major roads, bridges, or tunnels that are located such that the tolls are difficult to evadeâthey may not be cost-effective in areas with low population densities. However, a major expansion of tolling might reduce the need for federal expenditures on roads. Within the context of surface transportation reauthorization, there are several approaches to tolling that Congress could consider: allowing states to toll existing Interstate Highway lane capacity under certain circumstances, such as following major capacity expansion; permitting or prohibiting toll schedules that favor in-state vehicles or that toll only trucks; regulating rate setting under certain or all conditions; and expanding or restricting states' ability to use toll revenue to substitute for the non-federal share of federal-aid highway projects. State Versus Congressional Discretion A perennial question in highway reauthorization is how much of the funding should be distributed by formula to the states and how much should be distributed at the discretion of DOT. Prior to the ban on congressional earmarking in FY2011 virtually all of the discretionary program funding was earmarked by Congress. This, in effect, meant that the project spending decisions for the discretionary funds were under the direct control of Members of Congress. Under the earmarking ban, discretionary program project awards are selected by DOT under criteria set in the legislative language establishing the program. Although this congressional influence over project selection is not as direct as earmarking, Congress exercises more control over the use of discretionary funds than over the core program formula funds, which are under the control of the states. In reauthorization, Congress could increase the share of highway funding that is distributed by formula, diminishing the role of discretionary programs, or expand discretionary programs rather than formula funding. Recent surface transportation bills have reduced the number of discretionary programs, but Congress could choose to create new ones to address specific issues, for example, bridge conditions. Maintenance of Effort Studies have indicated that large increases in federal highway spending can lead to a substitution of federal funds for state spending on highways. The American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5 ), the stimulus bill enacted in the midst of the 2007-2009 financial crisis, contained a "maintenance of effort" provision requiring the governor of a state receiving stimulus funds to certify that the state would maintain its spending for specific purposes, including transportation infrastructure, in return for greater federal funding. A maintenance of effort requirement could be included in FAST Act reauthorization, especially if the bill provides a large increase in highway funding. However, declines in states' revenue resulting from employer closures due to the COVID-19 pandemic could make it more challenging for states to maintain spending levels. Formula Distribution/State Equity Issues Because the formula distributions in both the FAST Act and MAP-21 were based on the apportionment of the federal-aid highway formula programs to the states in the last year of the previous authorization bill, the relative distribution of funds among the states is basically the same as it was in 2009. It has not been adjusted for population growth, internal migration, highway and bridge infrastructure growth, or traffic growth. Defining the formula in this way carries over the "equity" adjustments made in the Safe, Accountable, Flexible, Efficient Transportation Equity ActâA Legacy for Users (SAFETEA; P.L. 109-59 ), enacted in 2005. These adjustments ensured that each state received formula funds equal to at least a specified percentage of the amount of motor fuel taxes its drivers paid into the highway account of the HTF. By effectively carrying over the equity redistribution, the current funding formula minimizes debates over the fairness of the distribution to individual states. In reauthorization, Congress could continue to retain a formula based on the previous distribution, or could replace it with a new formula paradigm that might incorporate factors intended to achieve specific policy goals. In the past, funding for individual highway programs was apportioned to the states using such formula factors as the ratio of federal-aid highway lane miles or vehicle miles traveled to the national total. Highway Bridge Improvement The FAST Act did not authorize a stand-alone highway bridge program. Instead, bridge improvements under the Fast Act are funded primarily via the NHPP and STBG based on states' priorities. As of December 31, 2018, of the 616,096 bridges in the U.S. National Bridge Inventory, 47,045 (7.6%) were in poor condition. This number has been declining for many years, but there is still a significant backlog of bridges awaiting major repairs or replacement. Should Congress wish to accelerate the reduction in the number of bridges in poor condition through the reauthorization process it could create a stand-alone bridge program. If this were a formula program, the states would select the projects; if it were a discretionary program, project choices would likely be made by DOT. Another highway bridge issue is how much federal bridge spending should be dedicated to bridges off the federal-aid highway network. Many of these are rural county-owned bridges. Under the FAST Act, each state must devote at least 15% of the amounts it received under the Highway Bridge Program in FY2009 to bridges. This amount is taken from the state's STBG funds. If it wishes to give priority to repairing rural bridges, Congress could raise the states' minimum spending level or could dedicate a specific amount to rural bridge projects. Current law penalizes states whose structurally deficient bridge deck area on the National Highway System, a network of 220,169 road-miles, exceeds 10% of its total National Highway System bridge deck area for three years in a row. In such a case, the state must devote NHPP funds equal to 50% of the state's FY2009 Highway Bridge Program apportionment to improve bridge conditions until the deck area of structurally deficient bridges falls to 10% or below. Congress could increase the penalty to encourage more spending of NHPP funds on bridges or eliminate the penalty and leave the bridge spending of NHPP funds entirely up to the states. When state officials determine that a bridge is unsafe, they are to close it to traffic immediately. The actual closing of a bridge is usually done by the state, but in some states closures are under the authority of county commissioners. The recent failure of local officials in Mississippi to close unsafe bridges until the state was threatened with the withholding of federal funds suggests that unsafe bridge closures do not always happen immediately. Congress may wish to consider the safety of bridges not directly under the control of the states in reauthorization. Freight Issues The FAST Act created two new programs to facilitate highway freight movement. The National Highway Freight Program (NHFP) is a formula program that provided up to $1.5 billion annually to the states for highway components designated as being especially important to freight movement. Having a separate freight formula program helps states concentrate funding for projects on freight routes. The FAST Act also created a discretionary grant program, the Nationally Significant Freight and Highway Projects Program, now called Infrastructure for Rebuilding America (INFRA), with funding of $1 billion in FY2020. INFRA discretionary grants are mostly for relatively large projects to enhance freight movement. They may be applied for by virtually any government entity. The program has received applications for far more funding than has been authorized. Despite the program's popularity, DOT has been criticized for a lack of transparency in the selection process and for selecting projects that do not have the highest cost/benefit ratios. Given the popularity of these programs, the likely reauthorization issues are the funding levels, eligibility changes, and, in the case of INFRA, oversight of the project selection process. If Congress wishes to allocate additional funding to improve freight movement, it would need to determine the share that would be distributed under the NHFP formula for spending at the discretion of the states versus the funding dedicated to INFRA and administered by DOT. Although the National Freight Network is vast, the worst congestion on freight routes occurs in a limited number of locations, mostly around Interstate Highway junctions in major urban areas. Climate Change and Adaptation Highway transportation is a major source of atmospheric carbon dioxide (CO 2 ), the main human-related greenhouse gas (GHG) contributing to climate change. Highway infrastructure will also bear the effects of climate change, such as extreme heat, sea level rise, and stronger storms. Highway policy responses to climate change can involve mitigation provisions that aim to reduce GHG emissions or adaptation provisions that aim to make the highway infrastructure more resilient to a changing climate. The federal-aid highway program already includes some programs that can be seen as being mitigation programs. The Congestion Mitigation and Air Quality Improvement program (CMAQ), for example, although not designed to address climate change, typically funds projects that reduce pollutant emissions from cars and trucks that also co-emit CO 2 . Other surface transportation programs that may contribute indirectly to the reduction of GHG emissions include the Transportation Alternatives program, which funds bicycle and pedestrian infrastructure, as well as core formula program eligibility and funding transfer provisions that allow highway funds to support mass transit. Congress may wish to consider mitigation options that encourage or support activities such as ride sharing, truck stop electrification, alternative fuel fueling stations, the use of hybrid electric and electric vehicles, and congestion relief policies. Adaptation is action to reduce the vulnerabilities and increase the resilience of the transportation system to the effects of climate change. Adaptation options for highways and bridges include structural and nature-based engineering and policy-based activities. For example, highway bridges can be engineered structurally to withstand the threats of stronger winds, higher storm surges, and increased flooding. Although currently there is no dedicated highway funding for adaptation projects, federal-aid highway funds can be used to assess the potential impacts of climate change and to apply adaptation strategies. Congress could add programs or program provisions to encourage or pay for adaptation and resiliency measures. The federal matching share could be increased for protective features and disaster relief definitions could be expanded to include resiliency measures. Emergency Relief Program The Emergency Relief program provides federal assistance to state departments of transportation for emergency repairs and restoration of federal-aid highway facilities following a natural disaster or catastrophic failure. Congress has long authorized $100 million per year to be spent from the HTF for Emergency Relief, but spending exceeds this amount virtually every year. Additional funding is provided via appropriations on a "such sums as needed" basis, usually following major disasters. These additional funds both pay for both quick release funds dispersed immediately following a disaster that are in excess of the annual $100 million authorization and pay for permanent repairs for damage from both recent disasters and the repair backlog from previous disasters. This situation raises two policy questions: whether to raise the annual authorization to reduce the reliance on supplemental disaster appropriations and how to resolve the repair backlog. States seeking Emergency Relief funds now must consider resilience to climate change in designing and constructing highway and bridge repairs. Resilience is broadly defined as "the capability to anticipate, prepare for, respond to and recover from significant multi-hazard threats with minimum damage to social well-being, the economy and the environment." Using risk-based analyses, this approach is designed to reduce the potential for future losses. However, states may be tempted to use Emergency Relief funding, which requires no state match, to make improvements that might otherwise have been made with federal formula funds or state funds. Emergency Relief is a basically a reactive program, and is not designed to fund resilience measures in advance of disasters. Congress could consider expanding the scope of the program to allow for the funding of resilience measures to some undamaged facilities that are at high risk, or could establish a separate resilience program while leaving Emergency Relief to retain its focus on disaster response and repair. Federal Lands and Tribal Transportation Programs Congress has established three separate programs to fund highways on federal and tribal lands. Their total funding under the FAST Act has averaged about $1.1 billion per year. The Federal Lands Transportation Program's average annual authorization is $355 million under the FAST Act. Most of this amount is for the National Park Service, the Fish and Wildlife Service, and the Forest Service. The Federal Lands Access Program supports projects that are on, adjacent to, or provide access to federal lands. Funding is allocated among the states by a formula. The Tribal Transportation Program distributes funds among tribes, mainly under a statutory formula based on road mileage, tribal population, and relative need. In addition, the FAST Act established the Nationally Significant Federal Lands and Tribal Projects Program to support large projects on federal and tribal lands. Projects must have an estimated cost of at least $25 million, with priority given to projects costing over $50 million. The program is authorized at $100 million annually, but requires an appropriation to make funds available. It has received appropriations of $300 million for FY2018, $25 million for FY2019, and $70 million for FY2020. Funding for all of these programs is likely to be an issue in reauthorization. The National Park Service, for example, has a considerable backlog of road repairs, but repairs to the agency-owned Memorial Bridge in Washington, DC, which cost 80% of the Park Service's average annual allocation under the FAST Act, made it difficult for the Park Service to address other repair needs. In addition, some states and Indian tribes have called for revising the formulas used to allocate Federal Lands Access Program and Tribal Transportation Program funds. TIFIA Although the majority of highway funds are awarded as grants, the federal government also supports highway infrastructure financing under the Transportation Infrastructure Finance and Innovation Act (TIFIA). The TIFIA program provides secured loans, loan guarantees, and lines of credit for major surface transportation projects. Loans must be repaid with a dedicated revenue stream; for highway projects this is typically a toll. TIFIA is funded at $300 million for FY2020. Assuming an average subsidy cost of 7%, this funding may allow lending of roughly $4.3 billion in the year. States may use their funds from two formula programs, NHPP and STBG, to pay the administrative and subsidy costs of the program. Additionally, the FAST Act allows project sponsors to use discretionary INFRA grants to pay these costs, although this has not occurred. The main issue in reauthorization is the funding level. Despite the program's popularity, DOT calculated that it had $1.65 billion unobligated budget authority at September 30, 2018. Congress could encourage greater use of TIFIA funds by increasing the federal project share allowable, broadening eligibility, and accelerating the processing of applications. Should Congress wish to increase the availability of TIFIA financing without increasing the program authorization, it could also change the subsidy calculation. A less conservative calculation by DOT and the Office of Management and Budget (OMB) could allow DOT to lend a greater amount with the same amount of budget authority, although this would increase the level of risk to the federal government. Congress could also lower TIFIA funding to eliminate the unobligated balances. TIFIA is one means of financing projects without relying on pay-as-you-go funding, thereby accelerating construction. Other financing proposals, such as creation of a National Infrastructure Bank and expanded funding of state infrastructure banks, might also be considered in reauthorization. In the past, such proposals have faltered, in part due to their apparent duplication of intent with the TIFIA program. Accelerating Project Delivery The length of time between project inception and completion has long been a concern of Congress. The many reasons for delays include difficulty in achieving agreement on the commitment of funds, public opposition, litigation, public comment requirements, contractor and materials delays, and the environmental review process. The FAST Act included 18 provisions intended to accelerate project delivery, mainly directing changes in how the environmental review process is implemented. In highway reauthorization, Congress may want to require studies evaluating the impacts of the FAST Act changes and FHWA's implementation actions. Highway Data Issues A number of highway data and study issues have emerged recently that could be considered in reauthorization. FHWA's Highway Statistics series is designed to provide a broad range of annual statistical tables and charts on the extent, condition, funding, and other attributes of U.S. highways. However, in recent years some of the tables have not been produced, while others are produced years after the fiscal year they describe, lessening their value to policymakers. Congress could request an explanation from FHWA or request the Government Accountability Office to review the FHWA's data collection and publication procedures. FHWA is dependent on the states for much of the underlying data. The recently released 23 rd edition of the biennial Status of the Nation's Highways, Bridges, and Transit: Conditions and Performance; Report to Congress was released two years late and based on FY2014 data. The report contains the most comprehensive information about the condition of U.S. highway and mass transit infrastructure conditions, along with estimates of the future funding needed to maintain or improve the conditions and transportation system performance. The most recent report does not reflect the increased funding authorized in the FAST Act or recent transportation appropriations bills, so it is difficult to judge the impact of these spending increases. Congress could consider requiring a study of why DOT relies on five-year-old data to prepare the report. FHWA formerly produced Highway Cost Allocation Studies (HCASs) to estimate the cost, in terms of wear and tear, imposed by different types of vehicles (including trucks categorized by weight) using U.S. highways. In these studies, highway taxes per mile paid into the HTF by different types of vehicles were compared to the cost per mile of pavement, bridge, and other highway-related damage caused by each vehicle type. The last FHWA Highway Cost Allocation Study was the 2000 supplement to the 1997 study. Without a congressional directive and funding to complete a new study, the FHWA has chosen not to conduct one. Congress could consider funding and requesting a new study, which might be helpful in judging whether the current rates of highway-related taxes paid by various users adequately reflect the damage their vehicles cause to highway infrastructure. Because freight infrastructure decisions are often made at the state or local level, it would be helpful for transportation planners to know the characteristics of the trucks traveling particular highway segments. DOT's Bureau of Transportation Statistics and the Census Bureau conduct a survey of shippers every five years that provides information on shipments leaving factories, warehouses, and ports. However, the sample size is not sufficient to provide reliable data for any specific urban area, and the survey is too infrequent to identify recent trends. The survey was designed more to provide a national picture of freight transport than to meet local or regional needs. A policy question for Congress is whether the federal government should be responsible for providing more robust and tim ely freight data for state and local transportation planners. Highway Safety Measures to improve the safety of roadway infrastructure are funded primarily through the FHWA Highway Safety Improvement Program (HSIP). Measures related to vehicles and to driver behavior are handled by the National Highway Traffic Safety Administration (NHTSA) and, in the case of commercial vehicles and drivers, the Federal Motor Carrier Safety Administration (FMCSA). HSIP is the largest safety program up for reauthorization. HSIP primarily funds infrastructure improvements, such as rumble strips, roadway striping, intersection redesign, and safety-related technologies. HSIP is one of the few highway programs that allows for spending on any public road, not just federal-aid highways. Reauthorization issues include funding amounts and eligibility changes. Driver behavior is the primary factor in the vast majority of fatal crashes. However, driver behavior is generally a state matter and not under federal control. When Congress wishes to change driver behavior, it typically does so by providing grants to states or by withholding grants if states fail to implement federal policies. For example, states that fail to establish 21 as the minimum age to purchase alcoholic beverages can be subject to funding reductions. A review of the effectiveness of such penalties could be part of the reauthorization process. Past issues in driver behavior that could emerge in reauthorization include restrictions on federal funding of automated devices to enforce speed limits, motorcycle helmet laws, and state measures concerning impaired driving. NHTSA also establishes minimum standards for passenger vehicles. The time it takes NHTSA to update these standards has been an issue. NHTSA also tests vehicles for compliance with safety standards, rates the crashworthiness of vehicles, and monitors consumer complaints about vehicles for evidence of safety defects that may necessitate a vehicle recall. A study of the effectiveness of NHTSA's early warning reporting (EWR) system could be of interest to Congress. Unlike the behavior of ordinary drivers whose behavior is regulated by the state and local governments, the behavior of commercial drivers who engage in interstate commerce is a federal matter under the auspices of FMCSA. Issues that could be considered in reauthorization include the regulation of hours of service for commercial drivers and the related mandate for use of electronic logging devices, the roadside safety examination of intercity buses, specific driver health requirements, and possible modification of age restrictions on commercial drivers.


Introduction Federal rulemaking is one of the crucial methods through which public policy is established and implemented in the United States. Under the constitutional separation of powers system, Congress enacts statutes th at often delegate rulemaking authority to federal agencies. Using that delegated authority, agencies issue regulations to implement those statutes and set the details of public policy. To structure the ways in which agencies issue regulations pursuant to their delegated authority, Congress has created a statutory scheme of procedural controls. The most significant of these controls is the Administrative Procedure Act (APA) of 1946, which generally requires agencies to issue a proposed rule and take public comment prior to issuing a final rule. Congress designed these basic stepsâwhich create the backbone of the federal rulemaking processâto allow for public input into federal agencies' policymaking decisions. As one scholar noted, "One of the APA's objectives was to open rulemaking to public participation, especially by those whose interests might be adversely affected by an agency's actions. Congress viewed hearing from such parties as a normal part of the legislative process, and therefore applicable to rulemaking." The APA's notice and comment requirements are possibly the best known and most significant mechanism allowing for public input into the rulemaking process. A lesser known procedural control that Congress created in the APA is a petition mechanism through which any interested party can request an agency to issue, amend, or repeal a rule. An agency is not necessarily required to grant the petition or take the requested action, but the APA does require the agency to respond and to do so in a "reasonable time." Thus, the APA petition mechanism is a potentially efficient (and arguably underused) means for an individual or stakeholder to call on an agency to take a particular action. This report briefly discusses the origin of the APA petition mechanism, outlines the mechanism's requirements for agencies, provides information from various outside sources about what may make an effective petition, discusses potential benefits to agencies and the public, and, finally, identifies some examples of statutory petition mechanisms that Congress created in addition to the APA's. APA Petition Mechanism: Historical Origins The APA's petition mechanism essentially re-stated the right to petition the government established by the U.S. Constitution, which can be traced as far back as the Magna Carta and Declaration of Independence. U.S. Constitution The principles on which the APA's petition mechanism are based are generally traced by scholars to the Magna Carta and, in the American context, to the Declaration of Independence. Though it was centuries old by the time of the American Revolution, the Magna Carta was a heavy influence on the colonists who declared their independence from Britain in the 1770s. The Declaration of Independence, which relied on many of the stated rights and liberties granted under the Magna Carta, referenced the failure of the British government to respond to petitions by stating the following immediately after its list of grievances: "In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury." Thus, the implication was that the colonists had an inherent right to petition the king, as well as a right to a response. Likely as a direct consequence of this perceived slight by the British government, the founders explicitly stated in the First Amendment of the U.S. Constitution that the people had a right to petition the government. Specifically, the First Amendment states that "Congress shall make no law â¦ abridging â¦ the right of the people â¦ to petition the Government for a redress of grievances." Although the First Amendment establishes a right to petition the government, it goes no further in detailing whether or how the government shall respond. The Administrative Procedure Act The lineage of this constitutional provision can be traced forward into the 20 th century and directly to the APA itself. The APA's petition mechanism, which allows interested persons to petition the government to take a rulemaking action, could easily be considered a more modern application of the constitutional right to petition. One scholar described the APA as "the bill of rights for the new regulatory state" that "defined the relationship between government and governed." The petition mechanism appears to fit within that characterization. Indeed, the APA's legislative history confirms the link: "Every agency possessing rule-making authority will be required to set up procedures for the receipt, consideration, and disposition of these petitions. The right of petition is written into the Constitution itself. This subsection confirms that right where Congress has delegated legislative powers to administrative agencies." Congress enacted the APA in 1946 following a large expansion of the federal government's size and authorities during the Franklin D. Roosevelt Administration's New Deal. The APA is considered by most observers to be a compromise between two groups in Congress: conservatives who were wary of the rapid growth of the administrative state and liberals who wanted to protect the ability of agencies to exercise their delegated administrative power. This balance was reflected in the foreword to the compiled legislative history of the APA, in which Senate Judiciary Committee Chairman Pat McCarran stated that although the APA "is brief, it is a comprehensive charger of private liberty and a solemn undertaking of official fairness. It is intended as a guide to him who seeks fair play and equal rights under law, as well as to those invested with executive authority. It upholds law and yet lightens the burden of those in whom the law may impinge." The petition mechanism, like other elements of the APA, can be contextualized by considering this balancing act between these two main perspectives on the administrative process reforms of the 1930s and 1940s. Many conservatives in Congress who believed that the rapid expansion of the government in the New Deal had the potential to threaten individual rights saw a petition mechanism as a way to provide individuals a means through which they could address grievances directly to government agencies. Some liberals in Congress who were generally more trusting of regulatory agencies and wanted to protect recently enacted New Deal programs were willing to agree to a petition mechanism, but they were cautious about how much would be required of agencies to respond. The petition provision that was ultimately included in the final version of the APA can be seen as a compromise between these two sides and is discussed in detail below. APA Petition Mechanism: Overview and Requirements Section 553(e) of the APA states, "Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." Such petitions are sometimes referred to as 553(e) petitions, petitions for rulemaking, petitions for reconsideration, administrative petitions, or citizens' petitions. Scope of the Petition Mechanism The APA's requirement for a petition mechanism applies to all agencies covered by the APA, which includes executive agencies and independent regulatory agencies. Section 553(e) states that the right to petition applies to any "interested person." The Attorney General's Manual on the A dministrative P rocedure A ct , which was published in 1947 and provides the executive branch's interpretation of the APA, states that the right to petition "must be accorded to any 'interested person'" and that "it will be proper for an agency to limit this right to persons whose interests are or will be affected by the issuance, amendment or repeal of a rule." The scope of agency actions that are covered by the right to petition is wide-ranging. The APA's definition of rule is broad and covers a variety of agency actions, including several types of actions that are not subject to the APA's notice-and-comment rulemaking procedures. Such actions include agency interpretive rules and policy statementsâcategories that are often colloquially referred to as "guidance documents"âand rules of agency organization, procedure, and practice. Thus, the petition mechanism could potentially be used for more than just rules that have undergone, or would be required to undergo, the APA's notice-and-comment procedures. Interaction with APA Rulemaking Procedures If an agency grants a petition requesting that it issue, amend, or repeal a rule, any relevant procedural requirements for rulemaking or other type of action would still apply. The Attorney General's Manual states, "If the agency is inclined to grant the petition, the nature of the proposed rule would determine whether public rule making proceedings under section 4(a) and (b) are required." In other words, a rulemaking action is not subject to, or exempt from, any procedural requirements as a result of the action having been taken pursuant to a petition under the APAâit does not provide an alternative means for an agency to take an action without going through otherwise-required procedures. Rather, the granting of the petition merely serves as a starting point for the agency to take an action. If the nature of the action requires notice-and-comment rulemaking, for example, the agency must still engage in those procedures. In any action an agency chooses to take pursuant to a petition, the agency may act only within the delegated authority that Congress has provided to it in statute. A petition can serve only as a procedural mechanism that could cause or encourage an agency to take action under its established authority. Agency Consideration and Response to Petitions Although Section 553(e) is only one sentence in length and provides very little detail, other sections of the APA contain some additional requirements for agencies with regard to receiving, considering, and responding to matters presented to them, including rulemaking petitions. Those requirements are discussed below. Notably, however, agencies have a great deal of discretion in determining the specifics of their procedures for receiving, considering, and responding to petitions. Submission and Consideration of Petitions Whereas the constitutional right to petition under the First Amendment does not require the government to consider or respond to a petitionâas described by one scholar, "it is little more than the right to make a clamor" âthe legislative history of the APA's petition mechanism stated that Congress did not intend for agencies to consider petitions "in a merely pro forma manner." Furthermore, the legislative history states that "where such petitions are made, the agency must fully and promptly consider them." Thus, the APA's legislative history suggests that agencies are minimally required to consider rulemaking petitions and arguably to do so in a timely manner. The text of the APA itself provides little information, however, on how agencies are to consider petitions, thus leaving quite a bit of discretion regarding the process and elements of agencies' consideration of petitions. The Attorney General's Manual states that agencies should establish, and publish â¦ procedural rules governing the receipt, consideration and disposition of petitions filed pursuant to section 4(d) [of the APA]. These procedural rules may call, for example, for a statement of the rulemaking action which the petitioner seeks, together with any data available in support of his petition, a declaration of the petitioner's interest in the proposed action, and compliance with reasonable formal requirements. Agency Procedures for Consideration of Petitions Several agencies have established such requirements for the submission of petitions. For example, the Food and Drug Administration (FDA) has issued regulations requiring certain petitioners to submit four copies of a petition, sign the petition, and include information referenced in the petition as applicable, among other things. Under those same regulations, the FDA commissioner must follow certain procedures and consider specified criteria when making a decision on whether to grant a petition, such as whether the petition is in the public interest and is being pursued in good faith. On the contrary, some agencies have not established additional requirements for petitioners and merely have the minimal requirements of the APA as a basis for their petition process. For example, the Securities and Exchange Commission provides an address for petitions and asks petitioners to "set forth the text of any proposed rule or amendment" or "specify the rule the repeal of which is sought" but requires little else of petitioners explicitly in its regulations. In some cases, agencies publish a notice in the Federal Register acknowledging receipt of a petition and asking for public comment as part of its consideration process. For example, in June 2017, the Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) issued a notice stating, "In response to petitions for reconsideration of the final rule on lease and interchange of passenger-carrying commercial motor vehicles (CMVs) published on May 27, 2015, and effective on July 27, 2015, FMCSA intends to revise the regulations to address 'chartering' (subcontracting) and the 48-hour delay in preparing a lease. FMCSA is requesting public comment on the proposed responses to the petitions discussed below." This public input would not substitute for the notice-and-comment rulemaking requirements of the APA if the agency decides to grant a petition, but it could assist the agency in gauging public interest and could provide information to assist the agency in its decision. ACUS Recommendations on Consideration of Petitions In 2014, the Administrative Conference of the United States (ACUS) reported that "few agencies have in place official procedures for accepting, processing, and responding to petitions for rulemaking" and that "how petitions are received and treated varies acrossâand even withinâagencies." ACUS issued several recommendations related to petitions for rulemaking, including some that addressed the consideration of petitions. The recommendations stated that, for example, "Each agency that has rulemaking authority should have procedures, embodied in a written and publicly available policy statement or procedural rule, explaining how the agency receives, processes, and responds to petitions" and that "the procedures should indicate how the agency will coordinate the consideration of petitions with other processes and activities used to determine agency priorities, such as the Unified Agenda and retrospective review of existing rules." ACUS also recommended that "the procedures should explain what type of data, argumentation, and other information make a petition more useful and easier for the agency to evaluate." Such information could be of assistance to petitioners as they are preparing to petition agencies. Response to Petitions The APA requires that agencies respond to petitions in a timely manner. Specifically, Section 555(b) states that "with due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." This provision has generally been interpreted to apply to a number of potential matters brought to an agency, including petitions for rulemaking: "Citing various combinations of Â§Â§ 553(e), 555(b), and 555(e), courts have repeatedly found that agencies must at least 'respond' to petitions for rulemaking." Furthermore, the APA appears to require that if the response to a petition is a denial, the agency must provide a reason for the denial. Section 555(e) states that "prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial." Although these provisions appear to establish a requirement for the agency to provide a timely response and a reason for denial, the APA does not further explicate what a response might or should entail. Presumably, if an agency grants a petition, the agency would conduct any procedural requirements that may apply (such as if the petition requested the agency to issue a rule subject to the APA's notice-and-comment requirements). Simply receiving a petition, however, does not require the agency to grant a petitioner's request. The legislative history of the APA states that agencies have several options in responding to petitions, including denial: "The agency may either grant the petition, undertake public rulemaking proceedings as provided by subsections (a) and (b) of this section, or deny the petition." The Attorney General's Manual appears to express a similar view: "the mere filing of a petition does not require the agency to grant it or to hold a hearing or to engage in any other public rule making proceedings." Thus, it appears that the agency is not necessarily obligated to grant any petition, but it must meet the minimum requirements of receiving the petition and responding to it in a timely manner. ACUS Recommendations on Agency Responses to Petitions The ACUS recommendations mentioned above also addressed agencies' responses to petitions, stating that agencies "should provide a reasoned explanation beyond a brief statement of the grounds for denial" and "should not reflexively cite only resource constraints or competing priorities." Furthermore, ACUS recommended that agencies should adopt in their procedures "an expectation that it will respond to all petitions for rulemaking within a stated period (e.g., within 6, 12, or 18 months of submission)," "[e]stablish and make publicly available an individual target timeline for responding to that petition," and "provide the petitioner and the public with a brief explanation for the delay, along with a reasonable new target timeline," if the target cannot be met. Denial of a Petition: Judicial Review An agency's denial of a petition may also be subject to judicial review. Section 706(2) of the APA states that courts can review and set aside final agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Section 555's requirement for the agency to give notice of the denial of a petition and to generally accompany the denial with a "brief statement of the grounds for denial" has, at times, been interpreted in combination with Section 706(2) of the APA to require the agency to issue a rational (but potentially brief) explanation for a denial of a petition. In some instances, courts have found agencies' denials of petitions to be in violation of the APA. Frequently when this has occurred, courts have remanded the denial to the agency to reconsider the petition. Potential Benefits of Rulemaking Petitions Rulemaking petitions have several potential benefits, such as that they can provide additional, low-cost opportunities for public participation in federal rulemaking. The subsections below identify and discuss several potential benefits of rulemaking petitions. However, as discussed in the last subsection below, responding to rulemaking petitions could potentially require agencies to allocate resources they would otherwise use elsewhere. Public Involvement in Rulemaking The primary benefit is arguably the opportunity for stakeholders and interested persons to engage directly in a significant type of federal policymaking. Federal rulemaking is the means through which most federal statutes and programs are implemented, and public participation in that process has been an essential component since the APA was enacted in 1946. The benefits of public participation could flow in both directions: Non-agency parties have a chance to make their views known to agencies, and agencies could learn from petitioners about the impacts of their rulesâpreviously issued or not-yet-issuedâby obtaining additional information or perspectives they may not otherwise consider. One study of the use of petitions for rulemaking under the Endangered Species Act found that outside groups petitioning the Fish and Wildlife Service provided useful information for identifying species that are "at least as deserving of protection under the Act as species identified by the agency on its own," further concluding that "these public participation tools might have an important role to play in collecting dispersed or diffuse information to help better inform agency decisionmaking." Less Costly Than Judicial Review The rulemaking petition process provides an arguably more democratic, widely available opportunity for public access by individuals and entities who may not otherwise have an opportunity to challenge agency rules through the courts by seeking judicial review. Filing a petition with a federal agency under the APA or another statutory petition mechanism is likely to be less costly financially and resource-wise than the potential cost of litigation. Potential for Compelling an Agency to Act Petitions for rulemaking can potentially serve as a mechanism to try to force an agency to issue a rule through a court challenge: On occasion, rulemaking petitions that were denied and challenged have led to court orders for the issuance of a rule. For example, in 1999, a group of stakeholders petitioned the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from new motor vehicles under its Clean Air Act regulatory authority. EPA took comments on the petition and published notice in 2003 that it was denying the petition. After a judicial challenge to the denial of the petition, in 2007, the Supreme Court held that EPA's reasons for denial of the petition were invalid and that EPA did have the authority to regulate greenhouse gas emissions under the Clean Air Act. The Court determined that, under the Clean Air Act, EPA must make a determination on the merits of whether to regulate greenhouse gas emissions or provide a reasonable explanation why it cannot or will not make that decision. Potential Intersection with Retrospective Review of Regulations and Regulatory Budgeting Rulemaking petitions can also encourage agencies to review or eliminate specific regulations that are outdated, ineffective, or overly burdensome. Administrations going back at least to the 1970s have required agencies to engage in retrospective regulatory review. The Trump Administration has taken that requirement a step further with its "one-in-two-out" regulatory requirement, which requires agencies to identify offsetting costs from at least two rules for every rule that imposes new costs. Rulemaking petitions could provide an information mechanism for agencies to comply with these requirements: Outside parties could help identify regulations or portions of regulations that are ripe for revision or elimination. Increase in Public Legitimacy of Agency Rulemaking Additionally, by allowing for participation in addition to the notice-and-comment requirements of the APA, agencies could potentially increase their public legitimacyâeither for a particular regulation or as a more general matter. The APA's legislative history acknowledges a potential "public relations" improvement for agencies that use petitions, stating that petitions "should be a most useful instrument of both improving the public relations of administrative agencies and protecting the public by affording interested persons a legal and regulatory means of securing the issuance, change, or rescission of a rule." An announcement in the Federal Register that an agency is considering granting a petition could serve as a notification similar to an advance notice of proposed rulemaking (ANPRM), which is another mechanism for early public participation in the rulemaking process. Such a notice could indicate, even in highly tentative terms, the type of action being considered by the agency and invite public input. Potential Disadvantages for Rulemaking Petitions Nonetheless, considering and responding to rulemaking petitions can be time- and resource-intensive for agencies. In 2013, the Nuclear Regulatory Commission (NRC) published a proposed rule to amend its procedures for receiving and considering petitions. In the document, the agency cited an increase in the number of rulemaking petitions it had received recently, stating that this "presented a significant resource challenge to the NRC." Such allocation of resources could cause delays in other activities at an agency, such as issuing other regulations. The use of resources to respond to a petition varies widely depending on the nature and content of the petition, however. What Makes a Petition Effective? The effectiveness of, and timing of response to, a petition for rulemaking likely depends on many factors, including the quality and nature of the arguments presented, the policy preferences of the agency and the Administration, any statutory requirements or constraints the agency faces, the evidence available to the agency and its ability to justify taking any particular action, and whatever preferences the agency and Administration may have for prioritization of resources at the agency. Many of these factors are outside of the control of a petitioner, but there are certain steps a petitioner might take to make a stronger case to the agency. Some outside groups have offered advice to the public for how to petition agencies more effectively. For example, the Center for Effective Government suggested that a petition for rulemaking should include information such as an explanation of the proposed action; the language the petitioner would like to propose for a new or amended rule or eliminate from a rule; information and arguments that support the petitioner's proposed action, including relevant technical and scientific data; specific facts or circumstances that support the proposed action; and relevant legal information about any specific laws or statutory provisions that is relevant to the petition and the rule in question. Individual agencies may provide guidance, or even requirements, for petitioners on their websites or in their regulations. For example, some of the suggestions provided by the Center for Effective Government above are from the Federal Aviation Administration's (FAA) regulations and guidance, which are on its website. Similarly, the NRC has regulations and detailed information on its website on how to submit petitions, as well as information tracking petitions that have been submitted to it, including visual information on the number and status of the petitions that have been submitted. As noted above, however, ACUS found in 2014 that few agencies had established official procedures for receiving, considering, and responding to petitions. As such, guidance may not necessarily be available for any particular agency's expectations or requirements. In such circumstances, general guidelines, such as those referred to above from the Center for Effective Government, may be useful. Other Statutory Authorities for Petitions for Rulemaking In addition to the APA petition mechanism, Congress has enacted various criteria for specific agencies' decisionmaking processes. Generally, these additional statutory mechanisms appear to build upon the 553(e) petition mechanism. A comprehensive list of all such provisions is beyond the scope of this report, but some examples include the following: The Fixing America's Surface Transportation Act required FMCSA to publish on a publicly accessible website a summary of all petitions for regulatory action submitted to FMCSA; "prioritize the petitions submitted based on the likelihood of safety improvements resulting from the regulatory action requested;" respond to each petition within 180 days of posting the summary; prioritize responses to petitions consistent with a petition's potential to reduce crashes, improve enforcement, and reduce unnecessary burdens; and keep an updated inventory of the petitions on its website. The Endangered Species Act states, "To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 553(e) of title 5, to add a species to, or to remove a species from, either of the lists published under subsection (c), the Secretary [of the Interior] shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If such a petition is found to present such information, the Secretary shall promptly commence a review of the status of the species concerned. The Secretary shall promptly publish each finding made under this subparagraph in the Federal Register." The Food, Drug, and Cosmetic Act contains requirements for the Secretary of Health and Human Services and for individuals petitioning the agency for a regulation on food additives. The statute lists information the petitions shall include, such as detailed scientific information about the additive and "full reports of investigations made with respect to the safety for use of such additive, including full information as to the methods and controls used in conducting such investigations." It also requires a petition to respond to requests from the Secretary for additional information and further requires the Secretary to publish notice of the regulation proposed by the petitioner.


Introduction Following a presidential declaration of emergency or major disaster, the Federal Emergency Management Agency (FEMA) may provide three primary forms of assistance: Individual Assistance (IA), Public Assistance (PA), and Hazard Mitigation Assistance (HMA). IA, which is the focus of this report, provides aid to affected individuals and households, and can take the form of assistance for housing and for other needs through the Individuals and Households Program, crisis counseling, disaster unemployment assistance, disaster legal services, and disaster case management services, as well as mass care and emergency assistance. PA provides grants to local, state, territorial, and Indian tribal governments, as well as certain private nonprofit organizations, for emergency protective measures, debris removal operations, and repair or replacement of damaged public infrastructure. HMA funds pay for mitigation and resiliency projects and programs to reduce the threat or impacts of future disasters. This report provides brief descriptions of the categories of IA authorized under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act; P.L. 93-288, as amended; 42 U.S.C. Â§Â§5121 et seq.). The information is based on the program guidance that FEMA released in March 2019, to serve as a comprehensive IA program policy resource; the Individual Assistance Program and Policy Guide (IAPPG) applies to emergencies and disasters declared on or after March 1, 2019. State, territorial, and Indian tribal governments do not automatically receive IA when a disaster occurs. Following an incident , the governor or tribal chief executive must request that the President declare an emergency or major disaster and that IA be authorized. When drafting a request for a major disaster declaration authorizing IA, the state, territorial, or Indian tribal government must demonstrate that the incident exceeds their capacity to effectively respond without federal assistance. FEMA then evaluates the request using a set of factors before providing a recommendation to the President. In March 2019, FEMA released the updated factors considered when evaluating a governor's request for IA, which became effective June 1, 2019. Thus, this report also lists and briefly describes the updated IA factors. Individual Assistance Programs Various types of FEMA IA may be provided to disaster survivors. The available IA options depend on the type of declaration (i.e., an "emergency" or "major disaster"), and the type(s) of IA requested by the governor of the affected state or the tribal chief executive. These requests must be authorized by FEMA (for information on the factors considered when determining whether to authorize IA, see the " IA Factors " section, below) . FEMA's IA program includes 1. Mass Care and Emergency Assistance ; 2. Crisis Counseling Assistance and Training Program ; 3. Disaster Unemployment Assistance ; 4. Disaster Legal Services ; 5. Disaster Case Management ; and 6. Individuals and Households Program. A brief description of each form of IA is included below. Mass Care and Emergency Assistance14 Mass Care and Emergency Assistance (MC/EA) involves the provision of life-sustaining services to disaster survivors prior to, during, and following an incident through short-term recovery. MC/EA includes seven service "activities": (1) sheltering; (2) feeding; (3) distribution of emergency supplies; (4) support for individuals with disabilities and others with access and functional needs; (5) reunification services for adults and children; (6) support for household pets, service animals, and assistance animals; and (7) mass evacuee support. Crisis Counseling Assistance and Training Program16 The Crisis Counseling Assistance and Training Program (CCP) provides grant funding to eligible local, state, territorial, and Indian tribal governments, as well as nongovernmental organizations. CCP supplements efforts to assist individuals and communities with recovering from the effects of a disaster through community-based outreach and the provision of services, such as crisis counseling, psycho-education, and coping skills development. CCP also provides support by linking the disaster survivor with other resources, such as individuals and agencies that help survivors in the recovery process. The program provides short- to intermediate-term assistance to support mental and emotional health needs. Two CCP programs provide assistance for different lengths of time: (1) the Immediate Services Program provides funding for up to 60 days following a major disaster declaration; and (2) the Regular Services Program provides funding for up to nine months from the notice of award. Disaster Unemployment Assistance23 Disaster Unemployment Assistance (DUA) provides benefits to individuals who were previously employed or self-employed, were rendered jobless or whose employment was interrupted as a direct result of a major disaster, and are ineligible for regular unemployment insurance. DUA may also provide re-employment assistance. DUA benefits may continue for up to 26 weeks following the declaration of a major disaster. Disaster Legal Services27 Disaster Legal Services (DLS) are provided free to low-income individuals who require them because of a major disaster. The provision of services is "confined to the securing of benefits under the [Stafford] Act and claims arising out of a major disaster." Assistance may include help with insurance claims, drawing up new wills and other legal documents lost in the disaster, help with home repair contracts and contractors, and appeals of FEMA decisions. Disaster Legal Services are provided through an agreement with the American Bar Association's Young Lawyers Division. Neither the statute nor the regulations establish cost-share requirements or time limitations for DLS. Disaster Case Management31 The Disaster Case Management (DCM) program partners case managers with disaster survivors to develop and implement disaster recovery plans that address their unmet needs. The program is time-limited, and shall not exceed 24 months from the date of the major disaster declaration. Individuals and Households Program34 The Individuals and Households Program (IHP) provides financial and/or direct assistance to eligible individuals and households who, as a result of a disaster, have uninsured or under-insured necessary expenses and serious needs that cannot be met through other means or forms of assistance. The IHP is the primary way FEMA assists disaster survivors. Although it may meet basic needs, it cannot compensate for all losses. The categories of IHP assistance are Housing Assistance and Other Needs Assistance (ONA) (see Table 1 ). The period of assistance is generally limited to 18 months following the date of the emergency or major disaster declaration. Housing Assistance Multiple types of Housing Assistance may be provided to meet disaster survivors' post-disaster housing needs. Housing Assistance includes the subcategories of Financial Housing Assistance and Direct Housing Assistance. The appropriate types of housing assistance depend on various considerations, including, but not limited to, cost-effectiveness; availability; suitability; and access to services. The federal cost share for FEMA housing assistance is 100%. The following sections provide a brief overview of each type of Housing Assistance organized by subcategory. Financial Housing Assistance Financial Housing Assistance is grant funding provided directly to the individual or household by FEMA. Some types of Financial Housing Assistance are subject to a limit on the amount of Financial Housing Assistance an individual or household is eligible to receive. Lodging Expense Reimbursement (LER) provides funding for out-of-pocket short-term lodging costs and taxes when the applicant is displaced from their primary residence because it is uninhabitable or inaccessible. Rental Assistance (including Initial Rental Assistance and Continued Rental Assistance) provides funding to rent alternate housing accommodations while the applicant is displaced from their primary residence because it is uninhabitable, inaccessible, affected by a utility outage, or unavailable. Home Repair Assistance provides funding to repair an owner-occupied primary residence, utilities, and infrastructure, subject to the maximum amount of financial assistance. Home Replacement Assistance provides funding to help replace a disaster-destroyed owner-occupied primary residence, subject to the maximum amount of financial assistance. Direct Housing Assistance Direct Housing Assistance is housing provided to the individual or household by FEMA or the state, territorial, or Indian tribal government. Direct Housing Assistance is not subject to the limit on the maximum amount of financial assistance an individual or household is eligible to receive. However, FEMA may only provide Direct Housing Assistance when Rental Assistance (a type of Financial Housing Assistance) is not available or is insufficient. Multifamily Lease and Repair (MLR) places disaster survivors in leased, repaired or improved multifamily temporary housing units (e.g., apartments). Transportable Temporary Housing Units (TTHUs) place disaster survivors in purchased or leased temporary housing units. TTHU sites must meet specific requirements, including (1) providing access to available and functional utilities; (2) complying with government ordinances; and (3) satisfying federal floodplain management and Environmental Planning and Historic Preservation (EHP) compliance review requirements. Direct Lease places disaster survivors in leased residential properties. Permanent Housing Construction (PHC) is a last resort used to provide home repair and new construction services to homeowners in insular areas or another location where no alternative housing resources are available. Other Needs Assistance Other Needs Assistance (ONA) provides a grant of financial assistance for other disaster-related necessary expenses and serious needs, and includes the subcategories of SBA-Dependent ONA and Non-SBA-Dependent ONA. ONA is subject to a limit on the amount of assistance an individual or household is eligible to receive. Further, ONA assistance may be somewhat limited because some ONA-eligible items and amounts available to be awarded are predetermined by FEMA and the state, territorial, or Indian tribal government. The federal cost share for ONA is 75%, and the non-federal cost share is the remaining 25%. The following sections provide an overview of each type of ONA organized by subcategory. SBA-Dependent ONA FEMA and the SBA collaborate in determining applicant eligibility for SBA-Dependent ONA. To receive SBA-Dependent types of ONA, applicants must first apply for an SBA disaster loan. SBA-Dependent ONA is only available to individuals or households who do not qualify for an SBA disaster loan or whose SBA disaster loan amount is insufficient. Personal Property Assistance provides funding to repair or replace eligible items damaged or destroyed as a result of a disaster. Transportation Assistance provides funding to repair or replace a vehicle damaged by a disaster. Moving and Storage Assistance provides funding to relocate and store essential personal property while repairs are made, and then return the property to the repaired primary residence. Group Flood Insurance Policy enables FEMA or the state, territorial, or Indian tribal government to pay $600 for three years of flood insurance for real and personal property through the National Flood Insurance Program (NFIP). Upon the expiration of the group policy, the applicant must purchase and maintain their own flood insurance; failure to do so may affect future IHP eligibility. Non-SBA-Dependent ONA Non-SBA-Dependent types of ONA may be awarded regardless of the individual or household's SBA disaster loan status. Funeral Assistance provides funding to assist with eligible expenses. Medical and Dental Assistance provides funding to assist with eligible expenses. Childcare Assistance is provided in the form of a one-time payment that covers up to eight cumulative weeks of childcare and eligible expenses to care for children aged 13 and under, and/or children up to age 21 who have a disability. Miscellaneous Expenses provides funding for reimbursement of eligible items purchased or rented after a disaster to assist with recovery. Critical Needs Assistance (sometimes referred to as "Immediate Needs Assistance") is provided in the form of a one-time payment of $500 to individuals or households who need life-saving and life-sustaining items because they are displaced from their primary dwelling as a result of a disaster. Clean and Removal Assistance is provided in the form of a one-time payment to address floodwater contamination for individuals or households whose primary residence experienced flood damage (any assistance received will be deducted from any subsequent award of Home Repair Assistance). IA Factors for a Major Disaster Declaration State, territorial, and Indian tribal governments do not automatically receive Individual Assistance (IA) when an incident occurs. The governor or tribal chief executive must request that the President declare an emergency or major disaster and that IA be authorized. This is because federal assistance is intended to supplementânot supplantâlocal, state, territorial, or Indian tribal government response and recovery efforts. In making such a request, the governor or tribal chief executive is claiming and must demonstrate that they are unable to effectively respond to the incident without federal assistance. The governor or tribal chief executive's request for a presidential declaration of emergency or major disaster must include information about the actions and resources that have been or will be committed, and an estimate of the amount and severity of the disaster-caused damages, in addition to other required information. Specific factors are considered by FEMA when evaluating the need for supplemental federal assistance to individuals (i.e., IA) pursuant to a request for a major disaster declaration. FEMA provides a recommendation to the President, and the decision to grant a declaration request is at the President's discretion. The authority to designate assistance types to be made available is delegated to the FEMA Assistant Administrator for the Disaster Assistance Directorate. IA Factors On March 21, 2019, as required by Section 1109 of the Sandy Recovery Improvement Act of 2013 (SRIA, Division B of P.L. 113-2 ), FEMA issued a final rule revising the factors considered when evaluating a governor's request for IA. The factors were revised to establish more objective criteria for evaluating the need for assistance, clarify eligibility requirements, and expedite a presidential declaration determination. These factors became effective June 1, 2019. In addition to the revised factors, FEMA also produced guidance for use by state, territorial, and Indian tribal governments when drafting requests for major disaster declarations authorizing IA. In addition to determining IA eligibility, the factors are also used to identify the types of IA that will be made available to the requesting state/territory/Indian tribal government. The factors considered when evaluating a governor's request for a major disaster declaration authorizing Individual Assistance are intended to assess the "severity, magnitude, and impact of a disaster, as well as the capabilities of the affected jurisdictions." "FEMA will always consider all relevant information submitted as part of a declaration request." As was the case prior to the adoption of the revised IA factors, major disaster declarations are made at the President's discretion and the IA factors do not limit presidential discretion. Brief descriptions of the factors are as follows: 1. State Fiscal Capacity and Resource Availability requires an evaluation of the resources available to the local and state/territorial/Indian tribal government, nongovernmental organizations, and the private sector, combined with the circumstances that contribute to a lack of sufficient resources, resulting in a need for supplemental federal assistance. This factor includes two subfactors: a. Fiscal Capacity evaluates the state's ability to raise revenue for disaster response and recovery using one of two variables: (1) increasing or decreasing, or higher or lower state total taxable resources (TTR); or (2)Â higher or lower state gross domestic product (GDP), which may be considered as the primary alternative to TTR for requesting territories or when TTR data is unavailable. Higher or lower per capita personal income by local area may also be considered with TTR or state GDP when FEMA needs to better assess the need for supplemental federal assistance within a local area. In addition, other factors may be considered because even states with a high fiscal capacity may be affected by disasters that overwhelm their capabilities, or the variables (i.e., TTR and state GDP) may not accurately reflect a state's fiscal capacity due to extenuating circumstances; and b. Resource Availability evaluates whether the disaster-caused needs can be met using non-Stafford Act sources. Two variables are considered: (1)Â resources and services provided by local and state/territorial/Indian tribal governments, and nongovernmental and private sector organizations; and (2)Â the cumulative effect of recent disasters occurring in the previous 24-month period. 2. Uninsured Home and Personal Property Losses considers the results of the FEMA-State Preliminary Damage Assessment (PDA) process to evaluate the extent of damage and estimated cost of assistance. The subfactors considered include (1) the "peril that caused the disaster damage" because it may affect insurance coverage; (2) the percentage of affected applicants with insurance for the peril that caused the damage; (3) whether the concentration of damages is in one area or if it is widespread; (4) the number of homes damaged and degree to which they are damaged (i.e., whether habitability is affected); (5) the estimated cost of assistance based on the PDA data and historical data; (6) the estimated rate of homeownership for the affected homes, which may influence whether the IHP is needed, and what types of housing assistance should be made available; and (7) other relevant PDA data that may demonstrate a need for supplemental federal assistance. 3. Disaster Impacted Population Profile evaluates the recovery challenges of the impacted population considering the affected community's demographics as compared with national averages. 4. Impact to Community Infrastructure evaluates the disaster's impact by considering disruption, damage, or destruction for more than 72 hours to any of the following three subfactors: (1) Life-Saving and Life-Sustaining Services that provide an "essential community function that ... will affect public health and safety", such as police, fire, and emergency medical services (EMS), medical facilities, and water treatment services; (2) Essential Community Services that improve quality of life, such as schools and childcare providers, and social services; and (3) Transportation Infrastructure and Utilities that, for example, render housing uninhabitable or inaccessible, or affect the delivery of services. 5. Casualties , including the number of individuals who are missing, injured, or deceased as a result of a disaster, indicate the level of trauma, which may influence the appropriate types of IA assistance to provide. Disaster Related Unemployment identifies the number of individuals who may have lost work or become unemployed as a result of the disaster and who do not qualify for standard unemployment insurance.