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Notice
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Subject
Revised Fiscal Year (FY) 2004 Advance Apportionments Pursuant to The Surface Transportation Extension Act of 2004, part IV
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Classification Code Date
Office of Primary Interest
N4510.527 August 25, 2004 HABF-10

  1. What is the purpose of this Notice? This Notice transmits the revised certificate of advance apportionment of Federal-aid highway program funds pursuant to the Surface Transportation Extension Act of 2003 (STEA03), Public Law (P.L.) 108-88, as amended by the Surface Transportation Extension Act of 2004 (STEA04), P.L. 108-202, the Surface Transportation Extension Act of 2004, Part II (STEA04, Part II), P.L. 108-224, the Surface Transportation Extension Act of 2004, Part III (STEA04, Part III), P.L. 108-263, and the Surface Transportation Extension Act of 2004, Part IV (STEA04, Part IV), P.L. 108-280. This apportionment is effective immediately.

  2. Does this Notice cancel the FHWA Notice 4510.524?

    1. Yes, this Notice cancels the FHWA Notice 4510.524, Revised Fiscal Year (FY) 2004 Advance Apportionments pursuant to the Surface Transportation Extension Act of 2004, Part III, dated July 8, 2004. The revisions to the apportionment are required pursuant to the STEA04, the STEA04, Part II, the STEA04, Part III, the STEA04, Part IV, a .59 percent across-the-board rescission contained in Division H, section 168, of the Consolidated Appropriations Act, 2004, P.L. 108-199, and an adjustment to carry out the provisions of title 26, United States Code (U.S.C.), section 9503(d) of the Internal Revenue Code of 1986.

    2. The FY 2004 Advance Apportionments pursuant to STEA04, Part IV, are being adjusted as required by title 26, U.S.C., section 9503(d) of the Internal Revenue Code of 1986, commonly referred to as the Byrd Test. The Byrd Test is a comparison of outstanding highway authorizations to current resources and projected receipts for the Highway Account of the Highway Trust Fund. If, in any fiscal year, unfunded authorizations at the end of the year will exceed the receipts projected for the following two fiscal years, the Secretary of Transportation is required to reduce highway apportionments for the year by the amount of the excess. With enactment of the STEA04, Part IV, the estimated unfunded Highway Account authorizations at the end of FY 2004 exceeded the Highway Account receipts projected for FY 2005 and FY 2006 by $728,565,628, requiring the reduction of all apportioned programs authorized from the Highway Account of the Highway Trust Fund by 2.3650 percent. Therefore, the programs receiving funds under this Notice - the Interstate Maintenance Program, National Highway System, Surface Transportation Program, Highway Bridge Replacement and Rehabilitation Program, Congestion Mitigation and Air Quality Improvement Program, Appalachian Development Highway System, Recreational Trails Program and Minimum Guarantee - is reduced by $716,457,500 or 2.3650 percent.

  3. What is the background information?

    1. The advance apportionment extends highway and highway safety programs pending enactment of legislation reauthorizing the Federal-aid highway program.

    2. Each State's advance apportionment as shown on Table 1 represents a proportional distribution of the $29,577,129,851 relative to each State's FY 2003 share of formula obligation authority pursuant to section 2(a) of the STEA03, as amended by sections 2(a) of the STEA04, the STEA04, Part II, the STEA04, Part III, the STEA04, Part IV, Division H, section 168, of the Consolidated Appropriations Act, 2004, P.L. 108-199 and adjusted by title 26, U.S.C., section 9503(d) of the Internal Revenue Code of 1986.

  4. What is the programmatic distribution?

    1. Table 2 shows the amounts based on the provisions of section 2(b) of the STEA03, as amended by the STEA04, the STEA04, Part II, the STEA04, Part III, and the STEA04, Part IV, and the adjustment to carry out the requirements of title 26, U.S.C., section 9503(d) of the Internal Revenue Code of 1986.

    2. The funds shown on Table 2 shall be administered as if apportioned under chapter 1 of title 23, U.S.C. The period of availability of funds apportioned under the STEA03, as amended by the STEA04, the STEA04, Part II, the STEA04, Part III, the STEA04, Part IV, and adjusted by title 26, U.S.C., section 9503(d) of the Internal Revenue Code of 1986, shall be the same as for programs among which funds are distributed.

    3. Program codes to be used when obligating these funds were provided in the memorandum from the FHWA Finance Division (HABF-20), "New Program Codes," dated October 14, 2003.

    4. The funds are available for obligation immediately and are subject to obligation controls in section 2(e)(3) of the STEA03, as amended by sections 2(d) of the STEA04, the STEA04, Part II, the STEA04, Part III, and the STEA04, Part IV, which provides that a State shall not obligate any funds for any Federal-aid highway program project after September 24, 2004, until enactment of a law reauthorizing the Federal-aid highway program, as well as obligation controls imposed by Division F of the Consolidated Appropriations Act, 2004, P.L. 108-199, the Transportation, Treasury, and Independent Agencies Appropriations Act, 2004.

  5. What are the repayment procedures?

    1. The amounts that will be apportioned for FY 2004 under chapter 1 of title 23, U.S.C., pursuant to reauthorizing legislation, shall be reduced by the amounts apportioned herein.

    2. As existing program categories may not be funded under reauthorizing legislation, procedures will be developed as to the restoration of advance apportionment funds to the Federal-aid highway program.

  6. Are certain States subject to withholding or penalty transfer? Yes. Currently, the States that are listed under the following three requirements were subject to withholding and transfer of funds on October 1, 2003. The funds to be transferred will be transferred to the State's 402 program. It should be noted that the following withholding and transfer amounts are subject to change based on enactment of a law reauthorizing the Federal-aid highway program.

    1. Open Container Requirements - 23 U.S.C. 154 - 3 percent

      Funds subject to be transferred: National Highway System, Surface Transportation Program and Interstate Maintenance.

      Alaska, Arkansas, Colorado, Connecticut, Delaware, Indiana, Louisiana, Mississippi, Missouri, Montana, Tennessee, Virginia, West Virginia, and Wyoming

    2. Operation of Motor Vehicles by Intoxicated Persons - 23 U.S.C. 163 - 2 percent (pursuant to the Department of Transportation and Related Agencies Appropriations Act, 2001, P.L. 106-346, section 351)

      Funds subject to withholding: National Highway System, Surface Transportation Program and Interstate Maintenance.

      Minnesota

    3. Minimum Penalties for Repeat Offenders for Driving While Intoxicated or Driving Under the Influence - 23 U.S.C. 164 - 3 percent

      Funds subject to be transferred: National Highway System, Surface Transportation Program and Interstate Maintenance.

      Alaska, California, Louisiana, Massachusetts, Minnesota, New Mexico, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming

    4. Tables 3, 4 and 5 illustrate the revised amounts to be transferred and withheld under section 154(c)(5), section 163 (pursuant to the Department of Transportation and Related Agencies Appropriations Act, 2001, P.L. 106-346, section 351) and section 164(b)(5). Table 6 illustrates the revised total amounts to be transferred under sections 154(c)(5) and 164(b)(5) based on the State's designation. Table 6 also illustrates the revised total amounts being withheld pursuant to section 163.

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

Mary E. Peters

Mary E. Peters
Administrator

Buckle Up America

CERTIFICATE OF ADVANCE APPORTIONMENT FROM
THE SUM OF $30,469,806,615 AUTHORIZED TO BE
ADVANCED FROM THE HIGHWAY TRUST FUND FOR
PROGRAMMATIC DISTRIBUTIONS PURSUANT TO THE
SURFACE TRANSPORTATION EXTENSION ACT OF 2004, PART IV

TO-

The Secretary of the Treasury of the United States and the State departments of transportation:

Pursuant to section 9503 of the Internal Revenue Code of 1986, the Transportation Equity Act for the 21st Century, the Surface Transportation Extension Act of 2003 (STEA03), as amended by the Surface Transportation Extension Act of 2004 (STEA04), the Surface Transportation Extension Act of 2004, Part II (STEA04, Part II), the Surface Transportation Extension Act of 2004, Part III (STEA04, Part III), and the Surface Transportation Extension Act of 2004, Part IV (STEA04, Part IV), title 23, United States Code, and the delegation of authority from the Secretary of Transportation to the Federal Highway Administrator, section 1.48 of title 49, Code of Federal Regulations, I certify-

First, that the Secretary of the Treasury has made the estimate required by title 26, United States Code, section 9503(d) of the Internal Revenue Code of 1986 and based on that estimate, I have determined that from the amount of $30,469,806,615 made available pursuant to STEA04, Part IV, it will be necessary, in accordance with Division H, section 168, of the Consolidated Appropriations Act, 2004, P.L. 108-199, to deduct .59 percent from the sum of $30,469,806,615 authorized to be appropriated by section 2 of the STEA03, as amended by sections 2 of the STEA04, the STEA04, Part II, the STEA04, Part III, and the STEA04, Part IV. In addition, a reduction of 2.3650 percent must be taken from the apportionments to carry out the provisions of the Byrd amendment (title 26, United States Code, section 9503(d)(3)(B)), which yields a sum of $29,577,129,851, which is 100 percent of the amount authorized to be made available as an advance from the Highway Trust Fund after carrying out the provisions of these Acts. These funds are available for obligation as if they had been apportioned under chapter 1 of title 23, United States Code.

Second, that pursuant to section 2(b)(3) of the STEA03, as amended by section 2(b)(1) of the STEA04, these funds are administered as if they had been apportioned, allocated, deducted, or set aside, as the case may be, under title 23, United States Code, except for: deductions and set asides in the following sections of such title shall not apply to such funds: sections 104(a)(1)(A), 104(a)(1)(B), 104(b)(1)(A), 104(d)(1), 104(d)(2), 104(f)(1), 104(h)(1), 118(c)(1), 140(b), 140(c), and 144(g)(1).

Third, that under section 154(c) of title 23, United States Code, relating to the Open Container Requirements law, 3 percent of the programmatic distribution of Interstate Maintenance, National Highway System, and Surface Transportation Program funds required to be apportioned and advanced to Alaska, Arkansas, Colorado, Connecticut, Delaware, Indiana, Louisiana, Mississippi, Missouri, Montana, Tennessee, Virginia, West Virginia, and Wyoming will be transferred to the State's section 402 program.

Fourth, that under section 163 of title 23, United States Code, pursuant to the Department of Transportation and Related Agencies Appropriations Act, 2001, P.L. 106-346, section 351, relating to the Operation of Motor Vehicles by Intoxicated Persons law, 2 percent of the programmatic distribution of Interstate Maintenance, National Highway System, and Surface Transportation Program funds required to be apportioned and advanced to Minnesota will be withheld from the apportionment.

Fifth, that under section 164(b) of title 23, United States Code, relating to the Minimum Penalties for Repeat Offenders for Driving While Intoxicated or Driving Under the Influence law, 3 percent of the programmatic distribution of Interstate Maintenance, National Highway System, and Surface Transportation Program funds required to be apportioned and advanced to Alaska, California, Louisiana, Massachusetts, Minnesota, New Mexico, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming will be transferred to the State's section 402 program.

Sixth, the amounts apportioned to each State under this programmatic distribution is determined in accordance with section 2(b)(2) of the STEA03, as amended by the STEA04, the STEA04, Part II, the STEA04, Part III, and the STEA04, Part IV, and title 26, United States Code, section 9503(d) of the Internal Revenue Code of 1986.

Seventh, the amounts are subject to obligation controls contained in section 2(e)(3) of the STEA03, as amended by sections 2(d) of the STEA04, the STEA04, Part II, the STEA04, Part III, and the STEA04, Part IV, which provides that a State shall not obligate any funds for any Federal-aid highway program project after September 24, 2004, until the enactment of a law reauthorizing the Federal-aid highway program.

Eighth, that after making the deductions, transfers and withholding, I have computed the apportionments among the States and the District of Columbia of the amounts authorized to be advanced from the Highway Trust Fund for the programmatic distribution to provide an extension of the Federal-aid highway program, pending enactment of a law reauthorizing the Transportation Equity Act for the 21st Century, in the manner provided by law in accordance with the formula in section 2(b) of the STEA03, as amended by sections 2(b) of the STEA04, the STEA04, Part II, the STEA04, Part III, and the STEA04, Part IV, and title 26, United States Code, section 9503(d) of the Internal Revenue Code of 1986.

Ninth, that subject to the deductions, transfers and withholding, the sums that are hereby apportioned to each State and the District of Columbia, effective immediately, are respectively as follows:

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


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