This Directive was canceled October 28, 2004.

U.S. Department of Transportation Federal Highway Administration	Notice Subject Revised Apportionment of Fiscal Year (FY) 2004 Minimum Guarantee Program Funds
	Classification Code	Date	Office of Primary Interest
	N4510.528	August 25, 2004	HABF-10

1. What is the purpose of this Notice? This Notice transmits the revised certificate of apportionment of Minimum Guarantee Program funds authorized for FY 2004 pursuant to section 105(a) of title 23, United States Code (U.S.C.), 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, and the Consolidated Appropriations Act, 2004, P.L. 108-199. The apportionment is effective immediately.
   
   
2. Does this Notice cancel the FHWA Notice 4510.525?
   
   
   1. Yes, this Notice cancels the FHWA Notice 4510.525, Revised Apportionment of the Fiscal Year (FY) 2004 Minimum Guarantee Program Funds, 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, 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. The Minimum Guarantee Program funds are accordingly reduced by $171,525,201 or 2.3650 percent.
      
      
3. What is the availability of these funds?
   
   
   1. The Minimum Guarantee Program funds resulting from this apportionment, as shown on Table 1, are available for obligation until September 30, 2007. Any amounts not obligated by the State on or before September 30, 2007, shall lapse.
      
      
   2. The funds resulting from this apportionment are subject to obligation controls in force at the time of obligation. Special obligation limitation will be provided with these funds. In addition, an amount of Minimum Guarantee Program funds is provided which is exempt from obligation controls.
      
      
   3. Revised funds will be transferred to the State's 402 Safety Program from the programmatic distribution portion of the Minimum Guarantee Program which adjusts the National Highway System, Surface Transportation Program, and Interstate Maintenance program for those States that failed to meet the provisions of title 23, U.S.C., section 154, the Open Container Requirements law (3 percent), and title 23, U.S.C., section 164, the Minimum Penalties for Repeat Offenders for Driving While Intoxicated or Driving Under the Influence law (3 percent). Tables 2 and 4 illustrate the revised amounts to be transferred under sections 154(c)(5) and 164(b)(5), respectively.
      
      
   4. Revised funds will be withheld from the programmatic distribution portion of the Minimum Guarantee Program which adjusts the National Highway System, Surface Transportation Program and Interstate Maintenance program for those States that failed to meet the provisions of title 23, U.S.C., section 163, the Operation of Motor Vehicles by Intoxicated Persons law (2 percent), pursuant to the Department of Transportation and Related Agencies Appropriations Act, 2001, P.L. 106-346, section 351. Table 3 illustrates the revised total amounts to be withheld under section 163.
      
      
   5. Table 5 illustrates the revised total amounts to be transferred under sections 154(c)(5) and 164(b)(5) based on the State's designation. Also, included on Table 5 are the revised amounts being withheld pursuant to section 163.
      
      
4. What action is required? Division Administrators should ensure that copies of this Notice are provided to State departments of transportation.

	Mary E. Peters Administrator

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 in section 1.48, 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 $7,291,977,969 made available that can be apportioned for the Minimum Guarantee Program for the fiscal year ending September 30, 2004, pursuant to section 105(d) of title 23, United States Code, as amended, 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 $7,291,977,969 authorized to be appropriated for the Minimum Guarantee Program. In addition, a reduction of 2.3650 percent must be taken from the apportionment to carry out the provisions of the Byrd amendment (title 26, United States Code, section 9503(d)(3)(B)), which yields a sum of $7,080,982,692, which is 100 percent of the amount authorized to be appropriated for the fiscal year ending September 30, 2004.

Second, pursuant to the provisions of section 154(c) of title 23, United States Code, the Open Container Requirements law, 3 percent of the amount required to be apportioned to the States of Alaska, Arkansas, Colorado, Connecticut, Delaware, Indiana, Louisiana, Mississippi, Missouri, Montana, Tennessee, Virginia, West Virginia, and Wyoming will be transferred to the apportionment of the State under section 402 of title 23, United States Code, from the programmatic distribution portion of the Minimum Guarantee Program, subject to a determination by the State in accordance with title 23, United States Code, section 154(c)(5).

Third, 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 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.

Fourth, pursuant to the provisions of section 164(b) of title 23, United States Code, the Minimum Penalties for Repeat Offenders for Driving While Intoxicated or Driving Under the Influence law, 3 percent of the amount required to be apportioned 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 apportionment of the State under section 402 of title 23, United States Code, from the programmatic distribution portion of the Minimum Guarantee Program, subject to a determination by the States in accordance with title 23, United States Code section 164(b)(5).

Fifth, that after making the deductions and transfers, I have computed the apportionments to each State and the District of Columbia of the amount authorized to be appropriated for the Minimum Guarantee Program in the manner provided by law in accordance with the formula in section 105 of title 23, United States Code and pursuant to the STEA03, as amended by the STEA04, the STEA04, Part II, the STEA04, Part III, and the STEA04, Part IV, Division F of the Consolidated Appropriations Act, 2004, and title 26, United States Code, section 9503(d) of the Internal Revenue Code of 1986.

Sixth, 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

	Mary E. Peters Administrator