This directive was canceled June 10, 2005

U.S. Department of Transportation Federal Highway Administration	Notice Subject Revised Fiscal Year (FY) 2005 Advance Apportionment pursuant to The Surface Transportation Extension Act of 2004, Part V
	Classification Code	Date	Office of Primary Interest
	N4510.537	January 25, 2005	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 2004, Part V (STEA04, Part V), Public Law (P.L.) 108-310. This apportionment is effective immediately.

2. Does this Notice cancel FHWA Notice 4510.534? Yes, this Notice cancels FHWA Notice 4510.534, Apportionment of the Fiscal Year (FY) 2005 Advance Apportionment pursuant to the Surface Transportation Extension Act of 2004, Part V, dated October 28, 2004. The revisions to the apportionment are required pursuant to a .8 percent across-the-board rescission contained in Division J, title I, section 122, and a 4.1 percent takedown contained in Division H, title I, section 117, of the Consolidated Appropriations Act, 2005, P.L. 108-447.

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. Section 2(d) of STEA04, Part V, authorizes a total of $22,685,936,000 in contract authority to be distributed to the Interstate Maintenance, National Highway System, Surface Transportation, Bridge, Congestion Mitigation and Air Quality Improvement, Recreational Trails, Appalachian Development Highway System, and Minimum Guarantee Programs.

   3. Division J, title I, section 122, of P.L. 108-447 applies a .8 percent across-the-board rescission to any contract authority provided in FY 2005 for any program subject to a limitation set in any division of that Act. As a result, the amount described in Item 3b above is reduced by $178,079,488 - $22,685,936,000, less $426,000,000 for the portion of Minimum Guarantee exempt from the obligation limitation, times .8 percent.

   4. Division H, title I, section 117, of P.L. 108-447 applies a 4.1 percent takedown to the remaining amounts apportioned for the Interstate Maintenance, National Highway System, Surface Transportation, Bridge, Congestion Mitigation and Air Quality Improvement, Appalachian Development Highway System, and Minimum Guarantee Programs. This provision reduces the amounts apportioned for the listed programs by an additional $921,217,292.

   5. The total contract authority available for distribution net of these reductions is $21,586,639,220.

   6. Each State's advance apportionment as shown on Table 1 represents a proportional distribution of the $21,586,639,220 relative to each State's FY 2004 share of formula obligation authority as prescribed in section 2(a) of STEA04, Part V, as adjusted by the provisions of section 105(f) of title 23, United States Code (U.S.C.), relating to Minimum Guarantee.

4. What is the programmatic distribution?

   1. In accordance with section 2(b) of STEA04, Part V, the funds apportioned to each State are distributed within that State among the Interstate Maintenance, National Highway System, Surface Transportation, Bridge, Congestion Mitigation and Air Quality Improvement, Recreational Trails, Appalachian Development Highway System, and Minimum Guarantee Programs in the same ratio that funds were apportioned to that State for those programs in FY 2004. This distribution among the funding categories is shown on Table 2.

   2. The funds shown on Table 2 shall be administered as if apportioned under title 23, 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 Division H of the Consolidated Appropriations Act, 2005, P.L. 108-447, the Transportation, Treasury, and Independent Agencies Appropriations Act, 2005.

5. 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.

6. 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, 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 Administrator

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

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 2004, PART V

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 2004, Part V (STEA04, 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 that 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 Division J, title I, section 122, of the Consolidated Appropriations Act, 2005, P.L. 108-447, I have determined that it will be necessary to deduct .8 percent from the sum of $22,685,936,000 authorized to be appropriated by section 2(b) of the STEA04, Part V. The resulting amount authorized to be apportioned is $22,507,856,512. These funds are available for obligation as if they had been apportioned under chapter 1 of title 23, United States Code.

Third, pursuant to Division H, title I, section 117 of the Consolidated Appropriations Act, 2005, P.L. 108-447, I have determined that it will be necessary to deduct 4.1 percent from the amount authorized to be appropriated for the fiscal year ending September 30, 2005, for the Interstate Maintenance, National Highway System, Surface Transportation, Bridge, Congestion Mitigation and Air Quality Improvement, Appalachian Development Highway System, and Minimum Guarantee Programs, I have deducted said 4.1 percent from the sum of $22,507,856,512 authorized to be appropriated for the fiscal year ending September 30, 2005. The resulting amount authorized to be apportioned is $21,586,639,220.

Fourth, 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).

Fifth, that under section 154 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.

Sixth, 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, 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.

Seventh, that under section 164 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.

Eighth, the amounts apportioned to each State under this programmatic distribution are determined in accordance with section 2(b)(2) of the STEA04, Part V.

Ninth, 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.

Tenth, 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 a eight-month 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 STEA04, Part V.

Eleventh, 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: