Graves Statement on GAO Determination that FHWA Memo Urging States Against Road-Building Constitutes a Rule
Transportation and Infrastructure Committee Ranking Member Sam Graves (R-MO) released the following statement in response to today’s U.S. Government Accountability Office (GAO) determination that the December 16, 2021, Federal Highway Administration’s (FHWA) memo intended to delay or deter critical road and highway expansion projects constitutes a rule for the purposes of the Congressional Review Act (CRA):
“Today’s GAO determination is what we’ve known all along – the FHWA memo goes far beyond mere ‘guidance’ from the Administration. Since IIJA was signed into law, the Administration has repeatedly doubled down on discouraging states from expanding or building new roads they may need, despite this policy being in direct conflict with what Congress intended.
“Congressional and stakeholder calls for FHWA to rescind its December guidance have been ignored by the Administration, which they know has caused significant confusion among states. Today’s determination demonstrates the need to hold the Administration accountable, prevent it from overstepping its authority, and ensure that the law is implemented as written. While I hope the Administration will rescind the flawed approach, I am prepared to work with my Senate colleagues to utilize the CRA if necessary to overturn this rule.”
According to the GAO decision, “The Memo sets out FHWA’s preferred projects for funding under the Infrastructure Investment and Jobs Act. When an agency rule has the effect of inducing changes to the internal policy or operations choices of the regulated community, that rule has a substantial impact on the rights and obligations of non-agency parties.
“CRA requires all agency rules to be submitted to Congress and the Comptroller General before they take effect. CRA incorporates the Administrative Procedure Act (APA) definition of a rule for this purpose with certain exceptions. FHWA did not submit the Memo under the Act. We conclude the Memo is a rule for purposes of CRA because it meets the APA definition of a rule and no exceptions apply.”