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Notice
Subject
Revised Apportionment of Funds for Fiscal Year (FY) 2011 Pursuant to the Surface Transportation Extension Act of 2010, As Amended
Classification Code Date Office of Primary Interest
N 4510.745 December 23, 2011 HCFB-1

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  1. What is the purpose of this Notice? This Notice transmits the revised certificate of apportionment for apportioned Federal-aid highway program funds for FY 2011 pursuant to the Surface Transportation Extension Act of 2010 (Extension Act), title IV of Public Law (Pub. L.) 111-147, as amended by the Surface Transportation Extension Act of 2010, Part II, title II of Pub. L. 111-322, and the Surface Transportation Extension Act of 2011, Pub. L. 112-5. The apportionments are effective immediately.

  2. Does this Notice cancel FHWA Notice 4510.733? Yes, this Notice cancels FHWA Notice 4510.733, Revised Apportionment of Funds for Fiscal Year (FY) 2011 Pursuant to the Surface Transportation Extension Act of 2010, as Amended, dated June 30, 2011. The revisions to the apportionments are required based on the revised apportionments for FY 2009, which were changed due to corrected data for the non-highway recreational fuel use factor. United States Comptroller General (Comp. Gen.) Decision B-275490 (December 5, 1996) requires that incorrect apportionments be appropriately adjusted to ensure compliance with the statutory formula for apportioning Federal highway funds enacted by Congress. See also 41 Comp. Gen. 16 (1961). All adjustments made based on the revised apportionments will be entered into the Fiscal Management Information System as adjustments to the FY 2012 apportionments to the extent possible.

  3. What is the background information?

    1. The Extension Act, as amended, extends the surface transportation programs, including the highway and highway safety programs, under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59, through September 30, 2011.

    2. Section 411(a) of the Extension Act, as amended, incorporates by reference and continues in effect the requirements, authorities, conditions, eligibilities, limitations, and other provisions authorized under titles I, V, and VI of SAFETEA-LU; the SAFETEA-LU Technical Corrections Act of 2008; titles I and VI of the Intermodal Surface Transportation Efficiency Act of 1991; titles I and V of the Transportation Equity Act for the 21st Century; and title 23, United States Code (U.S.C.) (excluding chapter 4 of that title), which would have otherwise expired or ceased to apply after September 30, 2009, or the date specified in section 106(3) of the Continuing Appropriations Resolution, 2010, Pub. L. 111-68.

    3. Pursuant to section 411(b)(2) of the Extension Act, as amended, except as provided in section 412 for the administrative expenses of the Federal Highway Administration, there is authorized to be appropriated out of the Highway Trust Fund (other than the Mass Transit Account) for FY 2011 a sum equal to the total amount authorized to be appropriated out of the Highway Trust Fund for programs, projects, and activities for FY 2009 under titles I, V, and VI of SAFETEA-LU and title 23, U.S.C. (excluding chapter 4 of that title).

    4. Pursuant to section 411(c)(2) of the Extension Act, as amended, except as otherwise expressly provided in the Extension Act, as amended, the funds authorized to be appropriated for FY 2011 shall be distributed, administered, limited, and made available for obligation in the same manner and at the same level as the total amount of funds authorized to be appropriated out of the Highway Trust Fund for FY 2009 to carry out programs, projects, activities, eligibilities, and requirements under SAFETEA-LU; the SAFETEA-LU Technical Corrections Act of 2008; titles I and VI of the Intermodal Surface Transportation Efficiency Act of 1991; titles I and V of the Transportation Equity Act for the 21st Century; and title 23, U.S.C. (excluding chapter 4 of that title).

    5. Pursuant to section 411(c)(3) of the Extension Act, as amended, the amounts authorized to be appropriated under the Extension Act, as amended, are calculated without regard to any rescission or cancellation of funds or contract authority for FY 2009 under SAFETEA-LU or any other law.

  4. What is the availability of these funds?

    1. The funds shall be available for obligation and administered in the same manner as if the funds were apportioned under chapter 1 of title 23, U.S.C.

    2. The funds resulting from this apportionment are available for obligation immediately and shall be subject to obligation controls in force at the time of obligation. For FY 2011, an amount of Equity Bonus Program funds equal to $639,000,000 is provided which is exempt from obligation controls.

    3. The program codes to be used when obligating these funds are similar to those under SAFETEA-LU, except that the zero at the end of each program code under SAFETEA-LU is replaced by the letter “E”.

  5. How were the program-by-program and State-by-State amounts determined?

    1. The base amount of apportioned funds available for each program and distributed to each State for FY 2011 is equal to the amount for each such program and State in FY 2009.

    2. Pursuant to section 411(d)(2) of the Extension Act, as amended, for FY 2011, the amount that a State received or was authorized to receive for FY 2009 to carry out sections 1301, 1302, 1307, 1702, and 1934 of SAFETEA-LU, and section 144(f)(1) of title 23, U.S.C., is made available to the State for the programs specified in section 105(a)(2) of title 23, U.S.C. (except the high priority projects program). The funds are programmatically distributed among the programs specified in section 105(a)(2) of title 23, U.S.C. (except the high priority projects program), in the same proportions that the amount apportioned to the State for FY 2009 for each such program bears to the amount apportioned to the State for FY 2009 for all of the programs specified in section 105(a)(2) of title 23, U.S.C. (except the high priority projects program). The programmatically distributed funds are administered in the same manner and with the same periods of availability as such funding is administered under the programs specified in section 105(a)(2) of title 23, U.S.C. (except the high priority projects program), except that no funds may be used to carry out the project described in section 1307(d)(1) of SAFETEA-LU.1

    3. Section 411(d)(4) of the Extension Act, as amended, instructs that no additional funds for FY 2011 are to be provided for any project or activity that the Secretary of Transportation determines was sufficiently funded before or during FY 2010 to achieve the authorized purpose of the project or activity. Funds for a project or activity subject to this determination are reserved and distributed to each State in the proportion that the total amount of funds made available for FY 2009 for such projects and activities in the State bears to the total amount of funds made available for FY 2009 for such projects and activities in all States (i.e., the funds for FY 2011 are made available to the same State for which the funds were available in FY 2009). Funding that would have been made available to a national nonprofit or not-for-profit organization but determined to be subject to this provision will be proportionally distributed among all States based on each State's total FY 2009 apportionments. The funds for each State are for use in carrying out other highway projects and activities and have been programmatically distributed within each State to the programs specified in section 105(a)(2) of title 23, U.S.C. (except the high priority projects program). It has been determined that the funds for the following programs are subject to this provision:

      1. (1) America's Byways Resource Center (section 1803 of SAFETEA-LU);
      2. (2) Bicycle and Pedestrian Safety Grants (section 1411(b) of SAFETEA-LU);
      3. (3) Denali Access System Program (section 1960 of SAFETEA-LU);
      4. (4) Freight Intermodal Distribution Pilot Grant Program (section 1306 of SAFETEA-LU);
      5. (5) Going-to-the-Sun Road (section 1940 of SAFETEA-LU);
      6. (6) Great Lakes ITS Implementation (section 1943 of SAFETEA-LU);
      7. (7) Multimodal Facility Improvements (section 1962 of SAFETEA-LU);
      8. (8) National Work Zone Clearinghouse (section 1410 of SAFETEA-LU);
      9. (9) Non-motorized Transportation Pilot Program (section 1807 of SAFETEA-LU);
      10. (10) Operation Lifesaver (section 1103(f)(1) of SAFETEA-LU, section 104(d)(1) of title 23, U.S.C.);
      11. (11) Pavement Marking System (section 1907 of SAFETEA-LU);
      12. (12) Road Safety Data and Public Awareness (section 1411(a) of SAFETEA-LU);
      13. (13) Road User Fee Study (section 1919 of SAFETEA-LU);
      14. (14) Set-Aside for Minneapolis/St. Paul-Chicago segment of Midwest High Speed Rail Corridor (section 104(d)(2)(E) of title 23, U.S.C.); and
      15. (15) Set-Aside for Ferry Boats Projects on the National Highway System (section 147(d) of title 23, U.S.C.).
    4. Table 1 shows the program-by-program, State-by-State apportionment amounts (inclusive of the previously allocated amounts under section 411(d) of the Extension Act, as amended, that have been programmatically distributed to the programs specified under section 105(a)(2) of title 23, U.S.C. (except the high priority projects program)) available under the Extension Act, as amended, for FY 2011.

  6. Are certain States subject to penalty transfer? Yes. Currently, the States that are listed under the following two requirements are subject to transfer of funds. The funds to be transferred will be transferred to the States' 402 Safety Programs.

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

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

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

    2. 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: Interstate Maintenance, National Highway System, and Surface Transportation Program.

      Alaska, California, Louisiana, Minnesota, Missouri, Montana, New Mexico, Ohio, Oregon, Rhode Island, South Dakota, Vermont, Washington, Wisconsin, and Wyoming

  7. How will the funds be transferred? Funds will be transferred from the Interstate Maintenance, National Highway System, and Surface Transportation Program apportionments (Table 1) to the States' 402 Safety Programs for those States that failed to meet the provisions of section 154 of title 23, U.S.C., the Open Container Requirements (3 percent), and section 164 of title 23, U.S.C., the Minimum Penalties for Repeat Offenders (3 percent). Tables 2 and 3 illustrate the amounts to be transferred subject to a determination by the State under sections 154(c)(5) and 164(b)(5), which allow the States to designate the funds to be transferred.

  8. What action is required? Division Administrators should ensure that copies of this Notice are provided to the State departments of transportation.

1 The Federal Highway Administration's Nevada Division Office will implement this restriction.

Attachments

Table 1
Table 2
Table 3

 

Signature: Victor M. Mendez, Administrator

Victor M. Mendez
Administrator

Federal Highway Administration | 1200 New Jersey Avenue, SE | Washington, DC 20590 | 202-366-4000