Transportation Infrastructure: A Comparison of Federal and State Highway Laws

Published by the Government Accountability Office on 1990-06-27.

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                                                                                                                                 TtiNSPORTATION                                                                          -
                                                                                                                                 A Comparison of
                                                                                                                                 Federal and State
                                                                                                                                 Highway Laws


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United States
General Accounting Office
Washington, D.C. 20648

Resources, Community,    and
Economic Development     Division


June 27,199O

The Honorable Quentin N. Burdick,
The Honorable John H. Chafee,
  Ranking Minority Member
Committee on Environment and Public Works
United States Senate

The Honorable Daniel P. Moynihan,
The Honorable Steve Symms,
  Ranking Minority Member
Subcommittee on Water Resources, Transportation,
  and Infrastructure
Committee on Environment and Public Works
United States Senate

In the Surface Transportation and Relocation Assistance Act of 1987,
Congress authorized the Combined Road Plan-a block grant demon-
stration project designed to test the feasibility of giving states more flex-
ibility to administer highway funds. The demonstration not only gives
states more latitude in making funding decisions, but allows states to
perform certain administrative functions such as approving design
exceptions and performing final project inspections. In the 199 1
reauthorization of the Highway Act, it is possible that Congress may
look for ways to provide states with even greater flexibility in adminis-
tering federal highway funds.

In February 1989 the Senate Committee on Environment and Public
Works requested that we compare federal and state prevailing wage,
environmental protection, Disadvantaged Business Enterprise, and
highway design laws to determine whether the protections afforded by
state laws in these areas are equivalent to the protections afforded by
federal laws. This information could assist the Congress in determining
whether states could assume more responsibility for the federal
highway program in these areas.

Traditionally, states must comply with these and other federal laws as a
precondition for obtaining federal highway funds. If compliance with
these requirements were to be waived, states might be permitted to
administer federal highway funds according to whichever state laws or
policies the individual states feel are appropriate.

Page 1               GAO/RCED-99-167 A Comparison of Federal and State Highway Laws

                   The laws targeted for this review included Davis-Bacon prevailing wage
                   laws, the &atianal Environmental Policy Act (NEPA), Disadvantaged Bus-
                   iness Enterprise laws, and highway design laws. Davis-Bacon ensures
                   that laborers on public works projects are paid commensurately with
                   prevailing wage rates in the same geographic area for similar work. NEPA
                   requires that adverse environmental impacts of a project be assessed
                   prior to the project’s construction. Disadvantaged Business Enterprise
                   laws require that qualifying disadvantaged business enterprises receive
                   a certain percentage of all public works contracts, and highway design
                   laws provide guidance for ensuring highway safety and durability. As
                   requested, we reviewed the laws of the five states participating in the
                   Combined Road Plan-California,       Minnesota, New York, Rhode Island,
                   and Texas.

                   While the prevailing wage laws of the five states are generally compa-
Results in Brief   rable to the federal Davis-Bacon Act, the states’ environmental,
                   minority-contracting, and highway design statutes vary in their degree
                   of comparability to their federal counterparts1 Although not identical in
                   content to the federal Davis-Bacon Act, the state prevailing wage laws
                   provide essentially similar protections to laborers on public works
                   projects. While California, Minnesota, and New York have environ-
                   mental protection laws that match or exceed the requirements contained
                   in NEPA, neither Rhode Island nor Texas has statutes designed to afford
                   similar protections. All of the states we reviewed have laws that, like
                   their federal counterparts, establish disadvantaged business contracting
                   programs, but the laws differ somewhat. For example, the federal law
                   requires that 10 percent of all surface transportation contracts be
                   awarded to disadvantaged business enterprises; states’ goals range from
                   less than 4 percent (Minnesota’s) to 20 percent (California’s). Both fed-
                   eral and state statutes regarding highway design are nonspecific and
                   vary significantly in scope and content.

                   According to state and federal highway officials, differences between
                   state and federal laws in some areas are mitigated by regulations,
                   administrative policies, case law, and operating procedures that are
                   comparable to the federal laws. For instance, although Texas statutes do
                   not contain an environmental reporting process similar to that required
                   under the federal NEPA, state transportation officials report that the

                    ’ For the purposes of this report, the term “law” refers to statutes that have been enacted through the
                   federal or state legislative process. It does not encompass regulations, administrative policies, or case
                   law, except as noted. Nor does this review assesscompliance with these laws.

                   Page 2                      GAO/RCED-80-167 A Comparison of Federal and State Highway Laws


                    Texas Department of Highways and Public Transportation administers
                    an environmental program comparable to NEPA. In the area of minority
                    contracting, although neither New York nor Texas has established a par-
                    ticipation goal at the statute level, officials in both states say that goals
                    established in administrative guidance meet or exceed the federal statu-
                    tory goal. Although highway design statutes at the federal and state
                    levels are largely incomparable, both federal and state highway officials
                    say that the administrative guidelines they use as their operative con-
                    trol over highway design are nearly identical.

                    Where states have afforded comparable protections to state laborers,
                    minority contractors, the environment, and highway safety, an implica-
                    tion exists that federal and state governments attach similar values to
                    these concerns. However, other indicators, including courts’ interpreta-
                    tions of the laws, administrative guidance, and states’ compliance with
                    the statutes, must be considered in determining whether the protections
                    afforded by the federal and state governments are equivalent. Addition-
                    ally, the presence of state laws or administrative guidance similar to the
                    federal requirements does not in itself guarantee that states would
                    retain or enforce the laws if federal requirements were lifted.

                    The federal Davis-Bacon Act requires that employees on federal public
State Laws on       works projects receive pay equal to the wages prevailing for similar
Prevailing Wages    classes of laborers in that geographic region. All five states have laws
Compare Favorably   that parallel this act, with minor variations, The federal act and state
                    laws differ slightly on their thresholds of applicability. The federal act
With the Federal    applies to all contracts greater than $2,000. Rhode Island sets a floor of
Davis-Bacon Act     $1,000, and both New York and Texas establish no minimum contract
                    value for when the laws apply. California’s threshold depends on the
                    type of project-maintenance      or construction. Minnesota’s threshold
                    depends on the number of trades or occupations required to complete a
                    project. According to state officials in New York and Texas, there is no
                    substantive difference in the federal and state thresholds, because the
                    value of most highway contracts -federal or state-significantly
                    exceeds the minimum thresholds. A detailed comparison of other provi-
                    sions of the Davis-Bacon Act with relevant state laws appears in
                    appendix I.

                    Page 3               GAO/RCED-90-157 A Comparison of Federal and State Highway Laws

                                  requires that the environmental impacts of a public works project
    Three of Five States    NEPA
                            be assessed prior to its initiation. Since the enactment of NEPA in 1969, a
    Have Environmental      number of states have adopted corresponding legislation to monitor and
    Acts That Mirror the    regulate potentially adverse environmental impacts of state projects.
                            Three of the five states reviewed have enacted such legislation. The
,   National                statutes in Minnesota and New York are slightly more extensive than
    Environmental Policy    the federal law and in California are significantly more so. Minnesota
    Act                     and New York laws, for example, surpass federal requirements by man-
                            dating that a report or worksheet be prepared as a decision tool for
                            determining the need for a full environmental impact report. California
                            statutes go further to provide specific criteria to be used in determining
                            whether a project will have a significant effect on the environment. All
                            three states report that in most areas where the state laws appear to
                            exceed the requirements of NEPA, the state laws have incorporated the
                            requirements established in federal regulations.

                            Rhode Island and Texas have no environmental acts that parallel NEPA,
                            although the Texas Department of Highways and Public Transportation
                            has established administrative procedures for evaluating environmental
                            impacts of state projects, According to Texas state officials, the proce-
                            dures are identical to those legislatively required by NEPA. Rhode Island
                            officials state that the small size of their state highway program does
                            not justify the need for a state act. The officials add that because most
                            projects funded solely by the state are small in magnitude-such      as
                            resurfacing roads-they would be unlikely to adversely affect the envi-
                            ronment. Appendix II discusses further the similarities and differences
                            between the federal and state environmental laws.

                            The Surface Transportation and Uniform Relocation Assistance Act of
    States’ Minority         1982 requires that not less than 10 percent of all surface transportation
    Contracting Laws        contracts be awarded to small businesses owned and operated by
    Vary in Their           socially and economically disadvantaged individuals. All of the states
                            reviewed have legislatively established disadvantaged business con-
    Comparability to        tracting programs intended to encourage disadvantaged business partic-
    Federal Disadvantaged   ipation in public works contracts, but the programs differ somewhat in
    Business Enterprise     their content. The most significant differences are in the percentage
                            goals set for minority business participation and the definitions of quali-
    Laws                    fying participants. Rhode Island’s statutes establish a lo-percent con-
                            tracting goal-identical    to the federal law. Both New York’s and Texas’
                            laws do not establish goals in the statutes, deferring, rather, the respon-
                            sibility for setting appropriate contracting goals to state agencies. Cali-
                            fornia’s laws establish separate goals for participation by women and

                            Page 4              GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
                                       minorities while other states establish one goal that encompasses
                                       gender, race, and disability. Minnesota’s contracting goal is lower than
                                       the federal goal. Table 1 illustrates the differences in the goals set by
                                       the federal government and the states for participation by disadvan-
                                       taged businesses.
Table 1: State and Federal
Disadvantaged Buriness Participation   Government                                                                         Participation goal
Qoalr                                  Federal government                                                                                10.00%
                                       California3                                                                                       20.00%
                                       Rhode Island                                                                                      10.00%
                                       Minnesota                                                                                          3.75%
                                       Texas”                                                                                            10.00%
                                       New York”                                                                                         17.00%
                                       “California laws establish separate goals for minorities and women: 15% for minorities, 5% for women.
                                       “Goals administratively   established by agency

                                       Unlike the federal law and those of the other four states, Minnesota’s
                                       law limits participation to economically disadvantaged small businesses,
                                       eliminating all references to social disadvantage or gender. The law is in
                                       response to the 1989 Supreme Court decision in City of Richmond v.
                                       J. A. Croson,:! in which the Court held that Richmond’s minority-
                                       contracting program violated the Constitution because Richmond could
                                       not statistically demonstrate a history of racial discrimination to justify
                                       its program. This decision has affected the state program in Minnesota
                                       and may affect programs in the other states that lack this same type of
                                       statistical evidence. In 1989 Minnesota suspended its race- and gender-
                                       based program after its state program was challenged on the same
                                       grounds as in Croson, and instead adopted interim race- and gender-
                                       neutral legislation. Appendix III discusses these issues in greater detail.

                                       Neither federal nor state statutes contain substantive operative stan-
States Say Federal and                 dards for highway design, Most design standards are contained, rather,
State Design                           in volumes of administrative policy promulgated by the American Asso-
Standards Are Nearly                   ciation of State and Highway Transportation Officials (AASHTO). The
                                       design standards establish, for instance, how wide road lanes must be or
Identical                              where guardrails may be placed.

                                       ‘488 US. 469 (1989)

                                       Page 5                        GAO/RCED-90-167 A Comparison of Federal and State Highway Laws

              Many states have adopted the AASHTD standards in their exact form for
              application on state roads; other states have promulgated standards of
              their own. In cases where the Federal Highway Administration (FHWA)
              has found the state standards to be reasonably similar to the federal
              standards, it has permitted the state to use these standards on projects
              receiving federal aid. If FHWA does not approve a state’s standards, the
              state may apply the standards to state-funded projects but may not
              apply them to projects receiving federal-aid funds. New York, for
              example, reports that for economic reasons, it has modified the federal
              guidelines for roadside clearance for application on state-funded high-
              ways. Each of the five states we reviewed reports that the variation
              from federal standards is minimal, and four states-California,       Minne-
              sota, New York, and Texas-report that some of their state standards
              are more stringent than the federal standards. Safety and the potential
              risk of liability, according to one state’s officials, are major considera-
              tions when deciding whether to deviate from the federally approved
              design standards.

              While some state prevailing wage, environmental, disadvantaged busi-
Conclusions   ness contracting, and highway design laws parallel the federal statutes,
              others vary considerably. State officials maintain that in several
              instances where the state laws are not similar, administrative guidelines
              have established processes equivalent to the federal laws.

              Where state laws are equivalent to federal laws, the states may be main-
              taining values similar to those of the federal government. However, the
              presence of equivalent laws is not in itself a guarantee that the protec-
              tions afforded by the states and the federal government are equivalent.
              For instance, compliance with the laws may vary considerably among
              states, and state and federal courts may interpret similar laws

              Where state officials maintain that regulations and administrative
              guidelines have established processes and standards equivalent to-or
              more stringent than-those in the federal statutes, this may also indi-
              cate that the states and federal government are maintaining similar
              values. Verification of the equivalency of these processes and standards,
              however, would require a review beyond the scope of this report. Here,
              too, the equivalency of protections afforded by the federal government
              and states would rely upon compliance with the regulations and

              Page 6              GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
  ,               B-239499

                  Additionally, the existence of the state laws and administrative
                  guidance does not guarantee that states will continue enforcing the cur-
                  rent laws or abiding by current policies should the states no longer be
                  required to demonstrate compliance with the federal laws. Statutes may
                  be rescinded or amended through a state’s legislative process; adminis-
                  trative programs may be changed even more easily through an agency’s
                  internal procedures. A number of factors, however, suggest that some
                  states would be likely to maintain state processes and statutes in the
                  absence of federal requirements. In the area of highway design, for
                  example, perceived liability may encourage states to maintain or bolster
                  state standards.

                  The Congress may choose from a number of options in determining the
Matters for       appropriate level of responsibility states should assume for the federal
Congressional     highway program. First, Congress could decide to maintain the status
Consideration     quo-not exempting states from any of the federal compliance require-
                  ments that are currently a precondition for obtaining federal funding.
                  This option incurs the least risk of diluting efforts aimed toward
                  upholding important national goals. Second, Congress could decide to
                  excuse states completely from compliance requirements, entrusting each
                  state with the freedom to administer the federal funds according to
                  whatever rules and laws that state deems appropriate. This option
                  incurs the greatest risk should states decide to rescind existing state
                  laws or relax compliance with them. Third, Congress could decide to
                  waive some or all of the requirements for compliance with the laws but
                  require states to demonstrate that they are providing an acceptable
                  level of protection to such concerns as labor, the environment, minority
                  businesses, and highway safety. The third option would require that
                  Congress determine what level of protection it is comfortable with and
                  what safeguards would be necessary to ensure that states continue to
                  enforce laws and programs that satisfy this standard.

                  The five states whose laws we reviewed and FHWA generally agreed with
Agency Comments   the facts presented in this report. The states and FHWA provided some
                  technical corrections and clarifications, which have been incorporated.

                  Additionally, FHWA expressed its concern that     our review addresses only
                  statutory law and does not assess compliance      with these statutes or
                  review significant case law interpretations of    the statutes. In response,
                  we acknowledged the limitations of using the      results of this analysis for

                  Page 7              GAO/RCED-90-167 A Comparison of Federal and State Highway Laws

future policy decisions and reviewed one Supreme Court case that          FHWA
identified as integral to our discussion of environmental law.

To complete this comparison of federal and state laws, GAO analyzed the
federal Davis-Bacon, NEPA, Disadvantaged Business Enterprise, and
highway design laws in their entirety and then searched state statutes
for comparable provisions. Realizing that state regulations and policies
might affect the way states administer these laws, GAO visited with state
attorneys and transportation officials to discuss state operations. We did
not, however, verify states’ reports of administrative policies, of courts’
interpretations of the statutes, or of regulatory guidance that states
claimed mitigate differences between federal and state laws. We also did
not review compliance with the federal or state statutes. While GAO rec-
ognizes the importance of addressing these issues in a complete assess-
ment of the equivalency between state and federal activities in a given
area, such an analysis is beyond the scope of this review. Views of fed-
eral officials from the Department of Transportation on our analysis
and the comparability of state and federal laws are also represented in
this report. Our work was performed between August 1989 and Feb-
ruary 1990.

We are sending copies of this report to the Secretary of Transportation;
the Administrator, FHWA; interested congressional committees; partici-
pating states; and other interested parties. This work was performed
under the direction of Kenneth M. Mead, Director, Transportation
Issues, who may be reached at (202) 275-1000. Major contributors to the

Assistant Comptroller   General

Page 8              GAO/RCED-90-167 A Comparison of Federal and State Highway Laws

    Page 9   GAO/BCED-W157 A Comparison of Federal and State Highway Laws

Letter                                                                                                 1

Appendix I                                                                                            12
Davis-Bacon             Union Agreements Often Supersede State Laws
                        Variations in Contract Amount Floors Are Insignificant
Prevailing Wage Laws    Overtime Is More Strictly Defined at the State Level                          13

Appendix II                                                                                           18
National                Three of Five States Have Environmental Acts Similar to
Environmental Policy
Appendix III                                                                                          25
Disadvantaged           States’ Programs Encourage Disadvantaged Businesses to
                             Participate in State Contracts
Business Enterprise     Supreme Court Has Challenged State Disadvantaged                              26
Laws                         Business Contracting Programs

Appendix IV                                                                                           30
Highway Design Laws     States Have Tailored Federal Standards to Meet Specific                       31

Appendix V                                                                                            33
Major Contributors to
This Report
Tables                  Table 1: State and Federal Disadvantaged Business                              5
                            Participation Goals
                        Table 1.1: Federal and State Prevailing Wage Laws                             14
                        Table II. 1: Federal and State Environmental Protection                       22
                        Table 11.2:Significant Environmental Impact Statement                         24
                        Table III. 1: Federal and State Disadvantaged Business                        28
                            Enterprise Laws

                        Page 10            GAO/RCED-90-187 A Comparison of Federal and State Highway Laws


Figure       Figure IV. 1: Comparison of Minnesota’s and AASHlU’s                          32
                  Shoulder Width Standards


             AASHm      American Association of State Highway and Transportation
             DBE        Disadvantaged Business Enterprise
             EIS        Environmental impact statement
             FHWA       Federal Highway Administration
             GAO        General Accounting Office
             NEPA       National Environmental Policy Act

             Page 11             GAO/RCED-90467 A Comparison of Federal and State Highway Laws
Appendix I

Davis-Bacon Prevailing Wagk Laws

                         In 1931 Congress enacted the Davis-Bacon Act,’ which-requires contrac-
                         tors to pay laborers on federal public works projects those wages pre-
                         vailing in that area for similar types of labor. Since its enactment, the
                         five states that we reviewed have each adopted similar legislation for
                         state-funded public works projects. Although some differences exist
                         between the federal and state laws, the federal act and all five of the
                         state laws provide generally equivalent protections to laborers on public
                         works projects.

                         According to two of the five states we reviewed, the primary means of
Union Agreements         establishing prevailing wage rates is through reference to union collec-
Often SupersedeState     tive bargaining agreements. According to state officials in Rhode Island,
Laws                     union workers perform nearly all of the labor contracted for by the state
                         transportation department. According to officials in California, New
                         York, and Rhode Island, the union contracts often set rules for basic
                         wages that exceed the requirements of the states’ prevailing wage laws.
                         New York officials state that in the areas of the state not highly union-
                         ized, the prevailing wage laws are an integral part of ensuring the pay-
                         ment of prevailing wages and supplements. State officials in Texas
                         report that Texas has elected to use the same rates established by the
                         Secretary of the United States Department of Labor as the prevailing
                         wages for state-funded projects.

                         One example of the generally minor variations between the federal and
Variations in Contract   state prevailing wage laws is the variation in thresholds at which the
Amount Floors Are        wage laws apply. The federal Davis-Bacon Act applies to all contracts
Insignificant            with dollar values in excess of $2,000. Rhode Island’s law establishes a
                         floor of $1,000, and both Texas’ and New York’s laws set no minimum
                         amount, requiring that prevailing wage laws apply to all state contracts.
                         California’s and Minnesota’s laws set dual limits-dependent     upon the
                         type and magnitude of the project. California requires that prevailing
                         wage laws apply for construction projects in excess of $25,000, and for
                         maintenance work costing more than $15,000. California officials
                         explain that smaller contracts than these are usually home service
                         projects-for     instance, carpentry or electrical wiring-where  the small
                         number of employees would not justify the expense of monitoring pay-
                         rolls and visiting sites to ensure compliance with the laws. Likewise,
                         Minnesota sets the application floor at $2,500 for contracts involving
                         only one trade or occupation, and $25,000 for those involving more than

                         ‘40 U.S.C., sec. 276a-1 thru 276a-6

                         Page 12                    GAO/RCED-fW157 A Comparison of Federal and State Highway Laws
                          Appendix I
                          DavbBacon PrevaiUng Wage Lawe

                          one trade or occupation. According to both officials in New York and
                          Texas, the differences between federal and state contract floors are
                          insignificant since nearly every highway contract-at both the state and
                          federal levels-exceeds these minimum amounts.

                          Similarly, minor variations exist in how the states and federal govern-
Overtime Is More          ment define the legal work day and work week, with the state laws
Strictly Defined at the   slightly stricter than the federal law. The federal Fair Labor Standards
State Level               Act defines the legal work week for laborers on federal public works
                          projects as 40 hours per week. California, Minnesota, and New York
                          establish the legal work week at 40 hours, but also define the legal work
                          day as 8 hours. For example, under these state laws, a laborer working a
                          40-hour week, in increments of 4 lo-hour days would receive overtime
                          pay for 2 hours each day. Rhode Island requires that either 40 hours per
                          week or 8 hours per day constitute the maximum work period, which-
                          ever isprevailing in the area. Texas laws are silent on the subject,
                          although Texas state officials report that any work in excess of 8 hours
                          per day is paid at the overtime rate.

                          Table I. 1 illustrates the similarities and differences between significant
                          provisions in the Davis-Bacon Act and in corresponding state laws.

                          Page 13               GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
                                                 Appendix I                                                                                 ,
                                                 Davis-Bacon Prevailing Wage Laws

Table 1.1: Federal and State PrevaMng Wage Laws
                                          Type of worker and            Definition of              Prevailing wage          Provisions in bids/
                       Contract floor     work                          prevailing wage            inclusion8               contracts
DavrsBacon      Act      $2,000                 Laborers or             Wages required to be       Hourly rate of pay,      Prevailing wages
                                                mechanics employed      paid various classes       benefit contributions,   must be stipulated in
40 USC. sec. 276(a)                             in the construction,    of laborers and            administration costs     ads for bids and
29 U.S.C. sec. 207                              alteration, and/or      mechanics based                                     contracts.
(a)(11                                          repair-including        upon the wages
                                                painting and            determined by the
                                                decorating -of          Secretary of Labor to
                                                public works            be prevailing for the
                                                                        classes of laborers
                                                                        and mechanics
                                                                        employed on projects
                                                                        of a character similar
                                                                        to the contract work
                                                                        in the location in
                                                                        which the work is to
                      _..-..__-                                         be performed
California               $15,000 for            Workmen employed        The general                Per diem wages           Prevailing wages
                         maintenance            on public works         prevailing rate of per     include employer         must either be
Labor Code               contracts              projects paid for in    diem wages for work        payments for             published in calls to
sec. 1771                                       whole or in part by     of a similar character     benefits, including      bid, bid
sec. 1772                $25,000 for            state funds             in the locality in which   welfare, pension,        specifications, or
sec. 1773                construction                                   the public work is         vacation, etc.           referred to in a copy
sec. 1777                contracts                                      performed                                           on file at awarding
sec. 1615                                                                                                                   body’s principal
                      .--___-                                                                                               office.
Minnesota                $2,500 for contracts   Laborers and            The hourly basic rate      Hourly basic rate of     Contracts and
                         requiring one trade or mechanics employed      of pay plus the            pay and contributions    proposals must state
Statutes Annotated       occupation to          on state-funded         contributions for          to benefit plans         prevailing wage rates,
sec. 177.25              complete               erections,,             health and welfare                                  hours of labor, and
sec. 177.31                                     constructron,           benefits, vacation,                                 hourly basic rates of
sec. 177.42              $25,000 for contracts  remodeling, or repair   pension, etc. paid to                               pay.
sec. 177.43              requirin more than     of a public work        the largest number of
sec. 177.44              one tra 1 e or                                 workers engaged in
                         occupation                                     the same class of
                                                                        labor within the area
 -       ...I
New York                                        Laborers, workmen,      Rate of wage paid in       Supplements, e.g.,      All contracts and
                                                or mechanics            the locality by virtue     health insurance,       advertised
Labor Law Article 6                             employed on all         of collective              welfare, retirement,    specifications must
sec. 20                                         contracts to which      bargaining                 must be in              stipulate the
                                                the state is a party    a reements between         accordance with         prevailing wages to
                                                                        la%or organizations        prevailing practices in be paid and
                                                                        and employers              the locality.           supplemental
                                                                        performing public or                               payments to benefit
                                                                        private work                                       plans.

                                                 Page 14                  GAO/RCED-90-157 A comparison of Federal and State Highway Laws
                                                        Appendix I
                                                        Davis-Jhcon Prevailing wage Laws

Method of wage                                                                                                             Suspension for failure to
determination                     Posting of wages                Work week and hours        Provision for overtime        pay prevailing wage
Secretary of Labor will’          Wage rates must be              40 hours/week              No less than 1.5 times the    3 years
determine prevailrng              posted by contractor in a                                  basic wage rate
wages                             prominent and easily
                                  accesible place at the site
                                  of work.

                           ..- ..- -_-
Director of industrial            If filed copy is referred to,   No more than 8 hours/day   1.5 times the basic rate of   Not less than 1 year, not
Relatrons sets wages,             copies of rates must be         and 40 hours/week          wages for all hours in        more than 3 years
considenng collective             posted at job site.                                        excess of 8 per day
bargainrng agreements,
federally established
rates, or further data from
local labor and employers.
Wages are set quarterly.

At least once per year, the       Hours,, rates, and labor    Prevailing hours not to        Not less than 1.5 times the No provision
Department of Labor &             classrfrcations must be     exceed 8 hours/day or 40       basic hourly rate of pay
Industry conducts                 posted on the project in at hours/week
investigations and holds          least one conspicuous
public hearings necessary         place.
to define classes of
laborers and mechanrcs
and to determine
prevarling hours of labor,
wage rates, and basic
rates of pay.
Department of jurisdiction        Wages must be posted in         8 hours/day and 5 days/    Premium wage prevailing       Two violations in 6 years
ascertains from plans and         a prominent and                 week, except in            in the area where work is     result in a 5-year
specifications the classes        accessible place on the         emergency conditions       performed                     suspension.
of workmen to be                  site of the work.
employed. The fiscal
officer of the locality then
determines the
appropriate wages to be
earned by each.

                                                        Page 15                   GAO/RdED-90-167 A Comparison of Federal and State Highway Laws
                                          Appendix I
                                          Davis-BaconPrevdling Wage Lawn

                                          Type of worker and      Definition of         Prevailing wage                Provisions in bids/
                         Contract floor   work        ---~        prevailing wage _-___-.-inclusions                   contracts
Rhode Island             $1,000           Mechanics,              Prevailing rates for       Hourly rate of pay,       All contracts and calls
                                          teamsters, laborers,    the corresponding          benefit contributions,    to bid must contain
General Laws                              workmen, or workers     types of employees         administration costs      provisions stating
sec. 37-13-1 thru sec.                    of any craft employed   on projects of a                                     prevailing wages to
37-13-16                                  in the grading,         character similar to                                 be paid and
                                          cleaning, demolition,   the contract work in                                 frequency of
                                          improvement,            the city, town, village,                             payment,
                                          completion, repair,     or political subdivision
                                          alteration,,            of the state in which
                                          constructron-           the work is to be
                                          including painting      performed
                                          and decorating -of
                                          public works                       ~-.--
Texas                    $0               Laborers, workmen,      Not less than the          No specific prevailing    Prevailing per diem,
                                          and mechanics           general prevailing         wage inclusions           holiday, and overtime
Labor Code,                               employed on all         rate of per diem                                     wages must be
Annotated                                 contracts to which      wages for work of a                                  specified in call for
Title 83, Article                         the state is a party    similar character in                                 bids and in contract.
5159(a)                                                           the locality in which
sets. 1,2,3                                                       the work is performed

                                          Page 16                   GAO/RCED90-167       A Comparison    of Federal   and State Highway   Laws

                                                   Davis-Bacon Prevailing Wage hwm

Method of wage                                                                                                     Suspension for failure to
  _ ._-..-_.. .._....-----      Porting of wage8             Work week and hours       Provirion for overtime      pay prevailing wage
Director of Labor               Prevailing wage rates and    Maximum of 40 hours/      Prevailing rate of wages    18 months
determines the prevailing       benefit contributions must   week or 8 hours/day,      for overtime employment
wages and payments to           be conspicuously             whichever practice is
benefit plans.                  displayed at project site.   prevailing

Wages are determined by         No provision                 8 hours/day               Not less than 1.5 times the No provision
the public body awarding                                                               required basic rate
the contract or authorizing
the work, whose decision
in the matter shall be final.


                                                   Page 17                  GAO/RCRD-90457 A Comparison of Federal and State Highway Laws
Appendix II

National Environmental Polk-y Act

                         Since the National Environmental Policy Act’s (NEPA) inception in 1969,
                         a number of states have adopted “little NEPAS” modeled after the federal
                         statute. Like NEPA, these acts require government agencies to prepare
                         impact statements on actions affecting or potentially affecting the
                         quality of the environment.

                         Of the five states reviewed for this analysis, three have adopted state
Three of Five States     legislation similar to NEPA. California, Minnesota, and New York have
Have Environmental       environmental protection acts that incorporate the major provisions of
Acts Similar to NEPA     the federal statute and in some cases incorporate more stringent require-
                         ments than NEPA. The other two states, Texas and Rhode Island, do not
                         have environmental laws comparable to NEPA. However, according to
                         Texas officials, the state administrative policy for environmental impact
                         assessment closely resembles NEPA. Rhode Island transportation officials
                         note that the small number of state-funded projects do not merit a sepa-
                         rate state environmental protection act. Additionally, according to these
                         officials, the projects funded solely by the state are on such a small scale
                         that the protections afforded the environment by such a law would
                         rarely be necessary: Small projects, like resurfacing roads, generally do
                         not threaten the environment.

                         NEPA requires an environmental impact statement (EIS) for all major fed-
                         eral actions significantly affecting the quality of the human environ-
                         ment. The EIS, as one court has stated,

                         permits the court to ascertain whether the agency has made a good faith effort to
                         take into account the values NEPA seeks to safeguard. . . . [IJt serves as an environ-
                         mental full disclosure law, providing information which Congress thought the public
                         should have concerning the particular environmental costs involved in a project.’

                         California’s, Minnesota’s, and New York’s environmental laws have
                         incorporated essentially the same specifications as defined by NEPA for
                         the content of an ~1s.

Roth Federal and State   One similarity between federal and state environmental acts is their
                         application to private construction projects. California’s, Minnesota’s,
Laws Apply to Private    and New York’s acts apply not only to actions proposed by the state, but
Development              also to any projects state and local agencies “approve” that may have a
                         significant effect on the environment. This requirement renders the

                         ‘Silva v. Lynn (II), 482 F2d 1282,1284(1st Cir. 1973)

                         Page 18                   GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
                              Appendix II
                              National Environmental    Policy Act

                              funding source irrelevant; projects receiving no public funds are still
                              subject to the requirements of the environmental acts if they require a
                              permit from or approval by a public agency. According to Federal
                              Highway Administration (FHWA)officials, NEPA also applies to any
                              project that requires a federal permit, even if no federal funding or
                              sponsorship of the project is involved.

Thresholds for Preparing      A slight difference between NEPA and the state environmental acts is the
Impact Statements Vary        point where a decision is made whether an EIS,isnecessary. This
                              threshold, above which the statement is determined necessary, varies
Slightly at the Federal and   slightly between the federal law and state laws. NEPArequires an EISfor
State Levels                  “major federal actions significantly affecting the quality of the human
                              environment.” Minnesota requires a statement where there is the
                              “potential” for such effects. California and New York both require state-
                              ments for projects that “may have a significant effect” and eliminate
                              the federal reference to “major” projects. According to officials in all
                              three states, in actual practice, the threshold for preparing an environ-
                              mental impact report is essentially the same under the federal and state

State Laws Often              In addition to having core elements similar to those of NEPA,California’s,
Incorporate Federal           Minnesota’s, and New York’s laws incorporate additional safeguards or
                              directions augmenting the environmental impact assessment process. All
- . .       and CaseLaw       three states have expanded on the environmental decision-making
Uecisions                     responsibilities contained in NEPA,in some cases, quite extensively. In
                              many cases, these elaborations reflect federal regulatory provisions or
                              significant case law decisions, which states have elected to codify within
                              their statutes. For instance, the California act includes an extensive list
                              of the types of projects excluded from the environmental process,
                              including emergency repairs necessary to maintain service and projects
                              undertaken to repair disaster-stricken areas. According to state officials,
                              these exclusions are derived nearly verbatim from the federal imple-
                              menting regulations promulgated by the Council on Environmental

                              ‘The Council on Environmental Quality is an agency established by Title II of NEPA in the Executive
                              Office of the President. The Council has become the principal agency responsible for the administra-
                              tion of NEPA, primarily through the adoption of interpretive regulations. NEPA conferred to the
                              Council only advisory-in contrast to enforcement-duties that include environmental review,
                              research, and reporting.

                              Page 19                    GAO/RCED-90-167 A Comparison of Federal and State Highway Laws
                           Appendix XI
                           National Environmental   Policy Act

                           In addition, although there is no federal statutory provision for identi-
                           fying actions to mitigate adverse environmental effects, the Supreme
                           Court ruled in Robertson v. Methow Valley Citizens Council3 that one of
                           the most important ingredients in an EIS is a “discussion of steps that
                           could be taken to mitigate adverse environmental consequences.” A
                           number of states’ environmental acts contain a provision embodying the
                           language of this court decision.

State Laws Provide for     Judicial review, or the process for seeking remedies for alleged harm
Judicial Review of State   through the judicial system, is not specifically provided for in NEPA.
                           State laws, however, include provisions that permit those asserting envi-
Environmental Acts         ronmental injury to seek remedies in a court of law. While New York
                           provides state courts with limited standing to review compliance with
                           the State Environmental Quality Review Act, California establishes the
                           specific procedure for judicial review of agency actions claimed not to be
                           in compliance with the state act. The Caiifornia act specifies time limits
                           for the commencement of court action and extends judicial inquiry to
                           whether there was a “prejudicial abuse of discretion,” which is estab-
                           lished “if the agency has not proceeded in a manner required by law or
                           if its determination or decision is not supported by substantial evi-
                           dence.” FHWA officials report that although federal statutory provisions
                           for judicial review are nonexistent, early court decisions established the
                           precedent for claims of environmental injury to be heard in court.

                           Table II. 1 compares the significant provisions of NEPA and of the state
                           laws in California, Minnesota, and New York. Table II.2 compares the EIS
                           content requirements for federal and state laws.

                           “109 S.Ct. 1836 (1989)

                           Page 20                  GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
Page 21   GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
                                Appendix II
                                National Environmental     Policy Act

Table 11.1:Federal and State
Environmental Protection Laws                                                                     Avoidance of adverse
                                                                  Weight of environmental         effects, reliance on
                                                                  concerns in agency              alternatives, and mitigating
                                                                  decision making                 measures
                                Federal National                  Appropriate consideration       No provision in statute
                                Environmental Policy Act          along with economic and
                                (NEPA)                            technical considerations

                                sec. 4331
                                sec. 4332
                                California Environmental          Consideration of qualitative,   Project should not be
                                Quality Act (CEQA)                economic, long- and short-      approved if feasible
                                                                  term benefits and costs         alternatives or mitigating
                                Government Code                                                   measures are available to
                                sec. 21080.3                                                      lessen environmental effects.
                                sec. 21001(3)
                                sec. 21002
                                sec. 21092
                                sec. 21167,21168

                                Minnesota Environmental           At least equal consideration    Action is not allowed if a
                                Policy Act (MEPA)                 along with economical and       feasible and prudent
                                                                  technical considerations        alternative exists.
                                sec. 116D.O3(b)
                                sec. 116D.04
                                subd. 2, subd. 6,
                                subd. 9, and subd. 10

                                New York State                    Appropriate weight with         To the maximum extent
                                Environmental Quality             social and economic             practicable, adverse
                                Review Act (SEQRA)                considerations in public        environmental effects should
                                                                  policy                          be avoided.
                                New York Environmental
                                Conservation Law
                                sec. 60109

                                Page 22                     GAO/RCED-99-167    A Comparison of Federal and State Highway Laws
                                                   Appendix II
                                                   NatIonal Environmental Policy Act

Environmental Impact          Decision process for
statement (EIS)               $t;$ining   the need for Coordination with other                                           Administrative and/or
requirements                                           agencies                           Public notification            judicial review
For major federal actrons     No provision in statute        Before preparation of an     Copies of EIS, comments,       No provision in statute
signrficantly affecting the                                  EIS, agency must             and views from
quality of the human                                         coordinate with any          appropriate agencies shall
environment                                                  federal agency with legal    be made available to the
                                                             jurisdiction or expertise    public.
                                                             with regard to impacts,
                 .^_.-. . - - -I_
For any project that may      No provision in statute    Before an Environmental          Agency preparing an EIR        Judicial inquiry is limited
have a significant effect                                Impact Report (EIR)              must notify public through     to whether agency has
on the environment                                       decision (equivalent to an       publication, posting, and/     proceeded in accordance
                                                         EIS), lead agency must           or direct mail. Completed      with law or whether
                                                         coordinate with other            report must be available to    agency’s decision is
                                                         responsibile agencies.           state legislature and          supported by substantial
                                                         Before completion of an          general public for cost of     evidence.
                                                         EIR, agency shall                reproduction.
                                                         coordinate with relevant
                                                         agencies and persons
                                                         with special expertise with
                                                         respect to impacts.                                                           ~--.-.
For major governmental      To determine whether an      Before reparation of a           Copies of EIS, comments,       Board has authority to
actions where there is the EIS is necessary, an          final Ell , the responsible      and views of the               reverse or modify a
potential for significant   Environmental                government unit must             approporiate offices shall     proposal following notice
envrronmental effects       Assessment Worksheet is coordinate with every                 be made available to the       to agency and hearings on
                            required when an action      governmental office with         public.                        decision. Aggrieved
                            has been (1) categorically   legal jurisdiction or                                           parties may seek judicial
                            determined to require one, expertise with respect to                                         review.
                            (2) when a petition is filed effects.
                            and approved requiring                                                                     Decisions on the need for
                            one, or (3) where an                                                                       or adequacy of an EIS may
                            envrronmental reveiw has                                                                   be reviewed in the district
                            not been provided for                                                                      court of the county where
                            specifically.                                                                              the action would be
                          - __...                                                                                      undertaken.
For any action that may     Agency may require           Draft EIS shall be filed with     Draft and final EIS must be State courts have limited
have a significant effect   applicant to submit          the department or other           made available to the       standing to review
on the environment          environmental report to      designated agencies and           public prior to project     compliance with SEQRA
                            help agency determine if     circulated for comment to         implementation. Notice of for those asserting
                            an EIS is necessary.         federal, state, regional,         initial determination with  environmental injury.
                                                         and local agencies having         supporting findings shall
                                                         an interest In the action.        be available for public
                                                                                           Agency determines
                                                                                           whether or not to hold
                                                                                           public hearings on a

                                                   Note: Rhode Island and Texas are excluded from this comparison as they do not have comparable
                                                   environmental protection laws.

                                                   Page 23                    GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
                                           Appendix II
                                           National Environmental    Policy Act

Table 11.2:Significant Environmental Impact Statement Provisions
EIS Content                                 Federal NEPA               Minnesota Act                 New York Act               California Act
Analysis of action’s environmental          Yes                        Yes                           Yt?S                        Yes
Impact                                       ~-
Analysis of unavoidable adverse             Yes                        Yes                           Yes                        Yes
Drscussron of alternatives to proposed      Yes                        Yes                           Yes                        Yes
Analysis of relationship bet&en             Yes                        No                            Yes                        Yes ~~
short-term uses of environment and
the maintenance and enhancement of
long-term productivity
Exploratron of methods to mitigate          NO                         Yes                           Yes                         Yes
effects of environmental action
Analysis of any irreversible                Yes                        No                            Yes                        Yes
commrtment of resources
Drscussron of growth-inducing               No                         No                            Yes                        Yes
aspects of proposed action                        ---     ---
Drscussion of measures to conserve          No                         No                            Yes                        Yes
                                           Note: Rhode Island and Texas are excluded because laws in these states do not require the preparation
                                           of an EIS.

                                           Page 24                    GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
 ppendix III

bisadvmtaged BusinessEnterprise Laws

                       With the intent of encouraging participation by socially and economi-
                       cally disadvantaged individuals in public contracting, Congress included
                       in the Surface Transportation and Uniform Relocation Assistance Act of
                       1987 (P.L. 100-17) a provision establishing the Disadvantaged Business
                       Enterprise (DBE) program. The legislation states that no less than 10 per-
                       cent of the amounts authorized through the act should be contracted to
                       small businesses owned and operated by socially and economically dis-
                       advantaged individuals. Such individuals are defined in section 8(d) of
                       the Small Business Act (15 U.S.C. 637(d)), which names specific groups
                       of individuals who qualify as disadvantaged for the program’s purpose.
                       The law also specifies that women shall be presumed to be socially and
                       economically disadvantaged individuals for the purpose of the program.

                       All five states we reviewed have enacted some form of legislation to
States’ Programs       encourage participation by disadvantaged businesses in public con-
Encourage              tracting. Three of the five states have established goals in the legislation
Disadvantaged          itself. Minnesota set a disadvantaged business contracting goal of 3.75
                       percent, and Rhode Island legislators mirrored the federal law, estab-
Businessesto           lishing a goal of 10 percent. California, reasoning that a single goal could
Participate in State   result in the underutilization of businesses owned by women, estab-
Contracts              lished a separate goal for minorities (15 percent) and for women (5 per-
                       cent). The remaining states have administratively established programs
                       to encourage minority participation. The Texas Commerce Department
                       has set an agency goal of 10 percent for the Department of Transporta-
                       tion, and the New York Department of Transportation sets an annual
                       goal for businesses owned by disadvantaged persons, members of
                       minority groups, and women, which the department reports it has main-
                       tained at 17 percent for the past 2 years.

                       The federal law and the state programs vary somewhat in how they
                       define eligibility for inclusion under their programs. The federal pro-
                       gram provides for socially and economically disadvantaged businesses,
                       members of which are specified legislatively. The Rhode Island law is
                       identical to the federal law, applying to economically and socially disad-
                       vantaged groups, the members of which are spelled out in the legisla-
                       tion. New York, Texas, and California do not delineate between
                       economic and social disadvantage, but, rather, identify the specific
                       minority groups that qualify for contracts under the state programs. All
                       four of these states classify women as an eligible disadvantaged group.
                       Minnesota’s program is race- and gender-neutral, based solely on the
                       premise of economic disadvantage, defined by criteria such as the age of

                       Page 26             GAO/RCEDSO-167 A Comparison of Federal and State Highway Laws
                         Appendix Ill
                         Disadvantaged Business Enterprbe Laws

                         the business and the owner’s income relative to the median income in
                         the state.

                         In the past year, several states’ minority and disadvantaged business
Supreme Court Has        enterprise programs have become subjects for legal battle. Following a
Challenged State         landmark Supreme Court decision that found a city ordinance unconsti-
Disadvantaged            tutional in its establishment of racial preferences for minority busi-
                         nesses, a number of state programs were challenged on similar questions
Business Contracting     of constitutionality. To date, three of the states we reviewed have been
Programs                 affected by these suits. Rhode Island, whose statutes are currently being
                         challenged, anticipates forthcoming legislative changes. New York, also,
                         according to state officials, is currently defending four lawsuits
                         involving the state’s disadvantaged business contracting program. Min-
                         nesota, faced with a similar lawsuit, suspended its existing program,
                         and enacted interim legislation until statistical support for a race- and
                         gender-based program could be obtained.

                         On January 23,1989, the Supreme Court ruled in City of Richmond v.
                         J.A. Croson Co.1 that a city ordinance requiring prime contractors to
                         subcontract at least 30 percent of their city construction contracts to
                         minority contractors violated the equal protection clause of the four-
                         teenth amendment to the U.S. Constitution. In striking down the ordi-
                         nance, the Court stated that in order for the program to be acceptable
                         under the fourteenth amendment, it must 1) have a “compelling govern-
                         mental interest” justifying the plan, and 2) be “narrowly tailored” to
                         remedy past discrimination. The Court ruled that the city of Richmond
                         had not demonstrated a “compelling governmental interest” because the
                         city could not present any firm evidence of identified past discrimina-
                         tion in the city’s construction industry. The Court also found that the
                         city’s plan was not “narrowly tailored” to remedy prior discrimination
                         because the program allowed preferences for groups where no evidence
                         of prior discrimination had been demonstrated. Additionally, the Court
                         noted that the plan allowed preferences for individuals living outside
                         the geographic area in which discrimination was alleged.

Minnesota SuspendsDBE    The impact of this and any subsequent Supreme Court decisions on state
                         disadvantaged and minority business contracting programs has yet to be
Program in the Wake of   fully realized. In the wake of Croson and another Supreme Court deci-
Croson      *            sion, which found that to be constitutional, a gender-based program

                         ‘488 US. 469 (1989)

                         Page 26               GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
Appendix III
Dhdvantaged     Business Enterprise Lawe

must also be substantiated with firm evidence of discrimination2 Minne-
sota suspended its race- and gender-based program. In its place, Minne-
sota enacted an interim gender- and race-neutral program based solely
on the economic status of the business. Meanwhile, efforts were under-
taken to determine the need and justification for a race- and/or gender-
based program. The Minnesota legislature established a commission to
compile statistical information evidencing a history of discrimination
against several racial groups and women. These findings, along with evi-
dence demonstrating how race- and gender-based set-aside programs
had helped ameliorate the underutilization of specific minority groups,
underscored the need for a new, statistically substantiated race- and
gender-based program. According to Minnesota Transportation officials,
new legislation that would establish a race- and gender-based disadvan-
taged business contracting program has passed both branches of the

Table III. 1 illustrates the similarities and differences between the major
provisions of the federal and state disadvantaged business enterprise

‘Milliken v. Michigan Road Builders Association, 109 S. Ct. 1333 (1989)

Page 27                    GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
                                                    Appendix III                                                                                .
                                                    Disadvantaged Business Enterprise Laws

Table 111.1:Federal and State Disadvantaged Business Enterprise Laws
                                                                                                        Minimum DBE
                                                                                                        contract               Contract amount
                           Contract type            Application      ---     Scope of coverage          requirement            limitations
Federal                    All contracts pursuant   Small business           Black Americans,           Not less than 10% of   None specified
Disadvantaged              to 1982 Surface          concerns owned and       Hispanic Americans,        all surface
Business Enterprise        Transportation           controlled by socially   Native Americans,          transportation
WE)                        Assistance Act           and economically         Asian-Pacific              contracts
                                                    disadvantaged            Americans, and other
P.L. 97-424 sec. 8(d)                               individuals              individuals found to
of 15 U SC. 637(d)                                                           be disadvantaged
              .._...- ..-. _---.-...          --                             under this act
Calrfornia                 All contracts for        At least 51% of a        Black, Hispanic, and       Statewide and          None specified
                           construction,            business or its stock    Native Americans           agency goals for
F;;i3C;de sec.             professional services,   must be owned by         (descendants of            contracting with
                           materials, supplies,     one or more women        American Indians,          minority- and women-
                           equipment,               or members of a          Eskimos, Aleuts,           owned businesses
                           alterations, repairs,    minority group. Must     Native Hawaiians),         should be 15% and
                           and improvements         be a domestic            Asian-Pacific              5% of contracts,
                                                    corporation with         Americans                  respectively.
                                                    home office in the       (descendants of
                                                    United States that is    peoples from Japan,
                                                    managed by and           China, Philippines,
                                                    whose daily business     Vietnam, Korea,
                                                    operations are           Samoa, Guam, U.S.
                                                    controlled by one or     Trust Territories of the
                                                    more members of a        Pacific, Northern
                                                    minority group or        Marianas, Laos,
                                                    women.                   Cambodia, Taiwan) or
                                                                             members of other
                                                                             groups identified by
                                                                             contracting agency
Mrnnesota                  Contracts for            Small businesses         Small businesses that      At least 5% of all     No individual contract
                           construction of          owned and operated       are (1) located in an      state contracts must   may exceed
Statutes Annotated         transportation           by economically          area where there is a      be set aside for       $200,000, nor shall
sec. 161.321,              improvements             disadvantaged            surplus of labor, (2)      award to small         any one
subd. 1,3,and 4                                     persons                  located in a county        businesses: at least   disadvantaged
sec. 645.445, subd. 5                                                        where median income        75% of this must be    business, as defined,
sec. 168.19, subd. 5                                                         is less than 70% of        awarded to small       be awarded in
                                                                             statewide median           businesses certified   a regate more than
                                                                             income, (3) within the     as economically        $!$O,OOOin 1 fiscal
                                                                             first 10 years of          disadvantaged.         year.
                                                                             operation, or (4)
   _          .       ~.~~~.._.-_- .._.---.                                  disadvantaged

                                                    Page 28                    GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
                                                 Appendix III
                                                 Disadvantaged Business Enterprise Laws

                                                                                                   Minimum DEE
                                                                                                   contract               Contract amount
                        Contract type            Application              Scope of coverage        requirement            limitations __-
New York                Agreements in            Business enterprises     Permanent resident       None specified         None specified
                        excess of $25,000 for    at least 51% owned       alien or U.S. citizen of
Executrve Law sec.      labor services,          by minority group        the following groups:
310, subd. 13           supplies, equipment,     members or women,
                        or materials             where ownership is       women, blacks,
                                                 real, substantial, and   Hispanics, Native
                        Agreements in            continuing. Such         Americans, Alaskans,
                        excess of $100,000       owners must control      Asians, and Pacific
                        for the acquisition,     the day-to-day           Islanders.
                        construction,            operations of the
                        demolition,              business.
                        replacement, major
                        repair, or renovation
                        of real property and

                        Subcontracts for all
                        above activities along
                        with planning or
                        design of real
                        property                                                                                                 .----
Rhode Island            State-funded and         Small business           Citizen or lawful        Minority enterprises   None specified
                        directed public          concerns owned by        permanent resident of    shall be awarded a
General Laws            construction             and whose daily          the United States        minimum of 10% of
Vol. 6A, Chapter 14.1   programs and             operations are           who is female, black,    the dollar value of
set 37-14.1             projects and state       controlled by one or     Hispanic, Portuguese,    every procurement or
                        purchases of goods       more minorities or       Asian American,          project.
                        and services             women; at least 51%      American Indian,
                                                 of business or public    Alaskan Native, or
                                                 stock must be owned      found to be
                                                 by such persons.         economically and
                                                                          disadvantaged as
                                                                          described in sec. 8(a)
                                                                          of the Small Business
                                                                          Act (15 USC.)
                                                        ~-                (637(a)).                                                        ..-..-_
Texas                   Public contract          Businesses at least      Women, Black             Statute gives          None specified
                        awards                   51% owned and            Americans, Hispanic      authority to Texas
Civil Practice &                                 whose management         Americans, Asian-        Department of
Remedies Code                                    and daily operations     Pacific Americans,       Commerce to
Annotated                                        are controlled by        and American Indians     establish goals
sec. 106.001(c)(Z)                               women or members                                  commensurate with
sec. 106.001(c)(l)A                              of minority groups                                availability of
sec. 106.OOl(c)(l)B                                                                                disadvantaged firms
                                                                                                   to perform certain

                                                 Page 29                    GAO/RCED-90-167 A Comparison of Federal and State Highway Laws
Appendix IV

Highway Design Laws

              The FederaleAid Highway Act of 1958’ requires that projects receiving
              federal-aid highway funds (1) meet existing and future traffic needs in a
              manner conducive to safety, durability, and economy of maintenance
              and (2) be designed and constructed in accordance with standards best
              suited to accomplish the foregoing objectives. Most of these standards
              have been promulgated by the American Association of State Highway
              and Transportation Officials (AASHTD). AA~HTO, representing state inter-
              ests, publishes and periodically updates volumes of administrative
              policy for the purpose of establishing standards for highway design.
              FHWA has adopted these standards as the specific controls for the design
              of federal-aid highways.

              Many states have adopted these federal (AASHTO) standards in their
              exact form for application on state highways that are constructed
              without the use of federal-aid funds. Other states have promulgated
              standards of their own for application on state highways. These stan-
              dards, when judged by FHWA to be in reasonable conformity with AASII?D
              standards, have been approved by the Federal Highway Administrator
              for use on federal-aid highway projects.

              Design standards dictate specifications for construction, such as lane
              width, road curvature, and guardrail placement. These specifications
              depend on a number of factors, such as the projected daily volume and
              character of traffic.

              Most of the operative guidance for highway design is in state design
              manuals rather than codified in statutes. Both the federal and state laws
              provide some general guidance on design, but, according to both state
              and federal officials, these requirements establish only the minimum
              standards. For instance, Minnesota’s statutes require a vertical clear-
              ance of at least 14 feet under bridges in urban areas. Officials from this
              state report, however, that the state design policies require a clearance
              of 16 feet. California officials add that design standards are not codified
              because they change over time and thus should not be rigidly fixed in

              ‘P.1,. 86-767, 23 IJSC. 109

              Page 30                       GAO/RCED-90-167 A Comparison of Federal and State Highway Laws
                       Appendix IV
                       Highway Design Laws

                       Although the federal and state statutes governing highway and bridge
States Have Tailored   design are largely incomparable, states report that the standards they
Federal Standards to   actually apply to state projects are equivalent-in   many cases, iden-
Meet Specific Needs    tical-to those required for federal-aid projects. All five states report
                       that they have adopted AASHTO standards as the states’ principal
                       guidance. In some instances, though, the states have tailored AASH~D
                       standards to suit state needs. For instance, because of high land costs,
                       New York standards for roadside clearance are lower for state projects
                       than what would be required for a federal-aid project. New York offi-
                       cials say, however, that they consider the history of safety problems in
                       an area before applying a standard lower than the corresponding AASHTO

                       California, Minnesota, Texas, and New York all report that in certain
                       areas, the state standards exceed the standards required for federal-aid
                       projects. For instance, in California, officials report that the state stan-
                       dard for superelevation’ on curves is higher than the corresponding
                       AASHTD standard. New York has begun to require a concrete divider dif-
                       ferent from the &W-rro-approved “jersey shape barrier”:’ in order to
                       reduce injury to passengers and damage to vehicles in the event of a
                       collision. For high volume traffic areas-primarily      urban areas-Texas
                       officials report that they have begun to design pavement for a 30-year
                       design life rather than the 20-year design life required by AASHTO. Min-
                       nesota’s requirement for shoulder width on principal arterials” ranges
                       from 8 to 12 feet while AASHID’S requirement ranges from 4 to 10 feet.
                       (See fig. IV. 1.)

                       “Superelevation refers to the vertical distance between the heights of inner and outer edges of
                       highway pavement.
                       “Jersey shape barriers are the concrete median barriers lining highway traffic lanes. They are used
                       primarily to reduce the severity of accidents and to prevent crossover accidents by separating
                       opposing traffic.
                       .‘Arterials are routes that function primarily to move large numbers of persons and vehicles quickly
                       from one place to another. They are characterized by long-distance travel, high volumes, and higher
                       speeds, and generally are constructed to higher design standards than other routes.

                       Page 31                     GAO/RCED-SO-157 A Comparison of Federal and State Highway Laws
                                         Appendix Iv
                                         Highway De&n Laws

Figure IV.l: Comparison of Minnesota’s
and AASHlO’s Shoulder Width
                                         14     Shouldor Width In Foot

                                              Vohlcleo par D8y

                                                I        Minnesota Department of Transportation Standards
                                                         AASHTO Stwdards

                                         Source: Minnesota Department of Transportation

                                         If FHWA approves these higher state standards for use on federal-aid
                                         projects, then FHWA pays the cost associated with meeting the higher
                                         requirements. Texas state officials report that if the higher standard is
                                         not approved by FHWA, the state or locality requesting the design must
                                         make up the funding difference between the amount needed to meet the
                                         approved standard and the amount approved for the project.

                                         Page 32                         GAO/RCED-90-167 A Comparison of Federal and State Highway Laws
Appendix V                                              I

Major Contributors to This Report

                         John W. Hill, Jr., Associate Director
Resources,               Jacquelyn Williams-Bridgers, Assistant Director
Community, and           Yvonne C. Pufahl, Assignment Manager
                         Leila D. Kahn, Evaluator-in-Charge
Economic                 John H. Skeen, III, Writer-Editor
Development Division,
Washington, DC.
                         David Hooper, Attorney Advisor
Office of General

(342801)                 Page 33             GAO/RCED-90-157 A Comparison of Federal and State Highway Laws
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