This directive was canceled January 25, 2005

U.S. Department of Transportation Federal Highway Administration	Notice Subject Fiscal Year (FY) 2005 Advance Apportionment pursuant to The Surface Transportation Extension Act of 2004, Part V
	Classification Code	Date	Office of Primary Interest
	N4510.534	October 28, 2004	HABF-10

1. What is the purpose of this Notice? This Notice transmits the certificate of advance apportionment of $22,685,936,000 in Federal-aid highway program funds pursuant to the Surface Transportation Extension Act of 2004, Part V (STEA04, Part V), Public Law (P.L.) 108-310. This apportionment is effective immediately.
   
   
2. 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 $22,685,936,000 relative to each State's FY 2004 share of obligation authority pursuant to Section 2(a) of the STEA04, Part V.
      
      
3. What is the programmatic distribution?
   
   
   1. Based on the provisions of Section 2(b), the advance apportionment for each State is distributed among the FY 2004 funding categories as shown on Table 2.
      
      
   2. The funds shown on Table 2 shall be administered as if apportioned under title 23, United States Code (U.S.C.). The period of availability of funds apportioned under the STEA04, Part V, shall be the same as for programs among which funds are distributed.
      
      
   3. The funds are available for obligation immediately and are subject to obligation controls in Section 2(e)(3) of the STEA04, Part V, which provides that a State shall not obligate any funds for any Federal-aid highway program project after May 31, 2005, until enactment of a multi-year law reauthorizing the Federal-aid highway program, as well as obligation controls imposed by a continuing resolution or an Act making appropriations for the Department of Transportation for FY 2005.
      
      
4. What are the repayment procedures?
   
   
   1. The amounts that will be apportioned for FY 2005 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.
      
      
5. Are certain States subject to withholding or penalty transfer? Yes. Currently, the States that are listed under the following three requirements are subject to withholding and transfer of funds on October 1, 2004. 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 the multi-year 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 - 4 percent (Pursuant to the Department of Transportation and Related Agencies Appropriations Act, 2001, Public Law 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 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, Public Law 106-346, Section 351) and Section 164(b)(5). The amounts transferred are subject to a determination by the States under section 154(c)(5) and 164(b)(5), which allow the States to designate the funds to be transferred. The determination of the designation should be submitted to the FHWA Division Administrators by October 30, 2004.
      
      
6. What action is required? Division Administrators should ensure that this Notice is provided to State departments of transportation.

	Mary E. Peters Administrator

Table 1
Table 2
Table 3
Table 4
Table 5

CERTIFICATE OF ADVANCE APPORTIONMENT FROM
THE SUM OF $22,685,936,000 AUTHORIZED TO BE
ADVANCED FROM THE HIGHWAY TRUST FUND FOR
PROGRAMMATIC DISTRIBUTIONS PURSUANT TO THE
SURFACE TRANSPORTATION EXTENSION ACT OF 200, PART V

TO-

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

Pursuant to Section 9503 of the Intermodal Revenue Code of 1986, the Transportation Equity Act for the 21st Century, the Surface Transportation Extension Act of 2004, Part V, 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 Section 9503(d) of the Internal Revenue Code of 1986 and based on that estimate, I have determined that the amount which can be advanced and apportioned from the Highway Trust Fund for projects to carry out Section 2(b) of the STEA04, Part V, for projects eligible thereunder, is $22,685,936,000, which is 100 percent of the amount authorized to be made available as an advance from the Highway Trust Fund.

Second, that pursuant to Section 2(b)(3) of the STEA04, Part V, 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 under 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 of title 23, United States Code, relating to 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, Public Law 106-346, Section 351, relating to Operation of Motor Vehicles by Intoxicated Persons law, 4 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 of title 23, United States Code, relating to Minimum Penalties for Repeat Offender 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 are determined in accordance with Section 2(b)(2) of the STEA04, Part V.

Seventh, the amounts are subject to obligation controls contained in Section 2(e)(3) of the STEA04, Part V, that provides that a State shall not obligate any funds for any Federal-aid highway program project after May 31, 2005, until the enactment of a multi-year law reauthorizing the Federal-aid highway program, as well as obligation controls imposed by a continuing resolution or an Act making appropriations for the Department of Transportation for FY 2005.

Eighth, that after making the deductions, transfers and withholding, I have computed the apportionment 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 eight-month extension of the Federal-aid highway program, pending enactment of a law reauthorizing the Transportation Equity Act of the 21st Century, in the manner provided by law in accordance with the formula in Section 2(b) of the STEA04, Part V.

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