1. What is the purpose of this Notice? This Notice is to notify States, as required by Title 23, United States Code (U.S.C.), Section 104(e), of the anticipated amount of funds to be apportioned under 23 U.S.C. 104, effective October 1, 2008. Also, this Notice provides the anticipated apportionments for the Highway Bridge Replacement and Rehabilitation Program (HBRRP) under 23 U.S.C. 144; Equity Bonus under 23 U.S.C. 105; and the Appalachian Development Highway System under Section 1116, the Coordinated Border Infrastructure Program under Section 1303, and the Safe Routes to School Program under Section 1404 pursuant to the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 109-59. It should be noted that the anticipated apportionment amounts are subject to change before issuing the certificates of apportionment, which are effective on October 1, 2008.

2. Are certain States subject to potential withholding and/or transfer? Yes. Currently, the States that are listed under the following six requirements are subject to potential withholding of apportionment and/or transfer of funds on October 1, 2008.

   1. Use of Safety Belts and Motorcycle Helmets – 23 U.S.C. 153

      Funds subject to three percent transfer to the State’s Safety Program under 23 U.S.C. 402: National Highway System (NHS), Congestion Mitigation and Air Quality Improvement Program (CMAQ), and Surface Transportation Program (STP).

      New Hampshire

   2. Open Container Requirements – 23 U.S.C. 154

      Funds subject to three percent transfer to the State’s Safety Program under 23 U.S.C. 402: NHS, STP, and Interstate Maintenance (IM).

      Alaska, Arkansas, Connecticut, Delaware, Georgia, Illinois, Louisiana, Massachusetts, Mississippi, Missouri, Puerto Rico*, Tennessee, Virginia, West Virginia, and Wyoming

      Notes: To avoid a transfer on October 1, 2008, the National Highway Traffic Safety Administration (NHTSA) must receive from the State by September 30, 2008, a certificate and laws that conform with 23 U.S.C. 154 programs implementing regulations.

   3. National Minimum Drinking Age – 23 U.S.C. 158

      Funds subject to ten percent withholding: NHS, STP, and IM

      Puerto Rico*

   4. Operation of Motor Vehicles by Intoxicated Minors – 23 U.S.C. 161

      Funds subject to ten percent withholding: NHS, STP, and IM

      Puerto Rico*

   5. Repeat Offenders – 23 U.S.C. 164

      Funds subject to three percent transfer to the State’s Safety Program under 23 U.S.C. 402: NHS, STP, and IM

      Alaska, California, Louisiana, Maine, Minnesota, New Mexico, Ohio, Oregon, Puerto Rico*, Rhode Island, South Dakota, Vermont, Washington, and Wyoming

      Note: To avoid a transfer on October 1, 2008, NHTSA must receive from the State by September 30, 2008, a certificate and laws that conform with 23 U.S.C. 164 programs implementing regulations.

   6. Commercial Driver’s License – 49 U.S.C. 31314

      Funds subject to up to five percent withholding: NHS, STP, and IM

      California, Minnesota, New Mexico, and Oregon

      The Secretary shall withhold up to five percent of the amounts that would otherwise be apportioned to a State under 23 U.S.C. 104(b)(1), (3), and (4) on October 1, 2008 if the Federal Motor Carrier Safety Administration (FMCSA) determines that throughout FY 2008 the State did not comply substantially with the requirements for State participation in the Commercial Driver’s License program contained in 49 U.S.C. 31311(a) and Title 49, Code of Federal Regulations, Part 384, Subpart B. FMCSA will determine the actual percentage of funds to be withheld if a State has not achieved substantial compliance by September 30, 2008.

3. Are there obligation controls? Yes. The obligation limitation associated with the funds withheld and/or transferred from a State’s apportionment pursuant to Use of Safety Belts and Motorcycle Helmets, 23 U.S.C. 153; Open Container Requirements, 23 U.S.C. 154; Repeat Offenders, 23 U.S.C. 164; and Commercial Drivers License, 49 U.S.C. 31314 is subject to obligation controls in force at the time of the withholding and/or transfer.

4. What are the anticipated FY 2009 apportionments? The following tables show the FY 2009 anticipated apportionment amounts effective on October 1, 2008. Table 1 shows the anticipated apportionments of IM, NHS, STP, HBRRP, CMAQ, Appalachian Development Highway System, Recreational Trails, Metropolitan Planning, HSIP, Rail-Highway Crossing, Coordinated Border Infrastructure Program, Safe Routes to School, and Equity Bonus before assessment of penalties. Table 2 shows the programmatic distribution of Equity Bonus before assessment of penalties. Table 3, Table 4, Table 5, and Table 6 reflect the anticipated penalty amounts to be transferred/withheld that comply with 23 U.S.C. 153, 154, 164, and 49 U.S.C. 31314 for IM, NHS, STP and CMAQ. Table 7 shows the anticipated amount of apportionments of IM, NHS, STP, HBRRP, CMAQ, Appalachian Development Highway System, Recreational Trails, Metropolitan Planning, HSIP, Rail-Highway Crossings, Coordinated Border Infrastructure Program, Safe Routes to School, and Equity Bonus; including programmatic distribution of Equity Bonus after the assessment of penalties.

5. What action is required? Division Administrators should ensure that this Notice is provided to State departments of transportation.

James D. Ray Acting Administrator

Attachments

Table 1
Table 2
Table 3
Table 4
Table 5
Table 6
Table 7