1. What is the purpose of this Notice? This Notice transmits the revised certificate of apportionment for apportioned Federal-aid highway program funds for the period beginning on October 1, 2011, and ending on March 31, 2012, pursuant to the Surface Transportation Extension Act of 2011, Part II (Extension Act), title I of Public Law (Pub. L.) 112-30. This apportionment does not include funds subject to section 111(d)(3) of the Extension Act (see paragraph 6 of this Notice). The apportionments are effective immediately.

2. Does this Notice cancel FHWA Notice 4510.738? Yes, this Notice cancels FHWA Notice 4510.738, Apportionment of Funds for the Period Beginning on October 1, 2011, and Ending on March 31, 2012, Pursuant to the Surface Transportation Extension Act of 2011, Part II, dated October 5, 2011. The revisions to the apportionments are required to replace the previously estimated total rescission amount with the actual total Fiscal Year (FY) 2011 rescission amount in the calculations, to reflect the revised apportionments for FY 2011, and to include the penalty for Maryland due to non-compliance with section 164 of title 23, United States Code (U.S.C.).

3. What is the background information?

   1. The Extension Act 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 March 31, 2012.

   2. Section 111(a) of the Extension Act 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, U.S.C. (excluding chapter 4 of that title), which would have otherwise expired or ceased to apply after September 30, 2011, under section 411(a) of the Surface Transportation Extension Act of 2010, title IV of Pub. L. 111-147, as amended.

   3. Pursuant to section 111(b) of the Extension Act, except as provided in section 112 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 the period beginning on October 1, 2011, and ending on March 31, 2012, a sum equal to ½ of the total amount authorized to be appropriated out of the Highway Trust Fund for programs, projects, and activities for FY 2011 (taking into account any rescission or cancellation of funds or contract authority for FY 2011) 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 111(c)(1) of the Extension Act, except as otherwise expressly provided in the Extension Act, the funds authorized to be appropriated for the period beginning on October 1, 2011, and ending on March 31, 2012, shall be distributed, administered, limited, and made available for obligation in the same manner and at the same level as ½ of the total amount of funds authorized to be appropriated out of the Highway Trust Fund for FY 2011 (taking into account any rescission or cancellation of funds or contract authority for FY 2011) 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. As required by section 111(c)(2) of the Extension Act, the amount authorized to be appropriated for the Federal-aid highway program under section 111(b) of the Extension Act is calculated by taking into account any rescission or cancellation of funds or contract authority for FY 2011. The total rescission amount under sections 2207, 2210, 2211, and 2212 of the Full-Year Continuing Appropriations Act, 2011, division B of Pub. L. 112-10, is $2,825,150,158. Therefore, the amount authorized to be appropriated for the Federal-aid highway program under section 111(b) of the Extension Act for the period beginning on October 1, 2011, and ending on March 31, 2012, has been reduced by $1,412,575,079 (½ of the total FY 2011 rescission amount). The reduction has been made on a proportional basis, with a total proportional reduction of $1,333,728,203 applied to the apportionments under this Notice.

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, except that during the period beginning on October 1, 2011, and ending on March 31, 2012, obligations subject to such limitation shall not exceed ½ of the limitation on obligations including in an act making appropriations for FY 2012. For the period beginning on October 1, 2011, and ending on March 31, 2012, an amount of Equity Bonus Program funds equal to $319,500,000 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 the period beginning on October 1, 2011, and ending on March 31, 2012, is equal to ½ of the amount for each such program and State in FY 2011 (taking into account, on a proportional basis, any rescission or cancellation of funds or contract authority for FY 2011).

   2. Pursuant to section 111(d)(1) of the Extension Act for the period beginning on October 1, 2011, and ending on March 31, 2012, ½ of the amount that a State received or was authorized to receive for FY 2011 (taking into account, on a proportional basis, any rescission or cancellation of funds or contract authority for FY 2011) 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 apportioned under sections 104(b) and 144 of title 23, U.S.C. The funds are programmatically distributed among the programs apportioned under sections 104(b) and 144 of title 23, U.S.C., in the same proportions that the amount apportioned to the State for FY 2011 for each such program bears to the amount apportioned to the State for FY 2011 for all of the programs apportioned under sections 104(b) and 144 of title 23, U.S.C. 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 apportioned under sections 104(b) and 144 of title 23, U.S.C., except that no funds may be used to carry out the project described in section 1307(d)(1) of SAFETEA-LU. ¹

   3. Table 1 shows the program-by-program, State-by-State apportionment amounts (inclusive of the previously allocated amounts under section 111(d)(1) of the Extension Act that have been programmatically distributed to the programs apportioned under sections 104(b) and 144 of title 23, U.S.C.) available under the Extension Act for the period beginning on October 1, 2011, and ending on March 31, 2012.

6. Does this Notice cover the funds subject to section 111(d)(3) of the Extension Act? No, this Notice does not cover the funds subject to section 111(d)(3) of the Extension Act (even funds that were found subject to this provision for the FY 2011 apportionments). Section 111(d)(3) of the Extension Act instructs that no additional funds for the period beginning on October 1, 2011, and ending on March 31, 2012, are to be provided for any project or activity that the Secretary of Transportation determines was sufficiently funded before or during FY 2011 to achieve the authorized purpose of the project or activity. Once the final determinations of the funds subject to this provision are made, the apportionment amounts will be recalculated and a revised Notice will be issued.

7. 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. The penalty transfer under section 164 of title 23, U.S.C., for Maryland is subject to an administrative review by the National Highway Traffic Safety Administration and the Federal Highway Administration; the penalty transfer amount will be withheld and reserved from transfer pending the completion of the administrative review and then either transferred to the State's 402 Safety Program or restored to the State's apportionments depending on the outcome of that process. It should be noted that the following penalty transfer amounts are subject to change based on revisions to the apportionment calculations based on determinations made under section 111(d)(3) of the Extension Act, enactment of additional extension provisions, or enactment of a multiyear law authorizing the Federal-aid highway program.

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

8. 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.

9. 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

Revised Certificate of Apportionment From the Sum Of $18,738,409,837 Authorized to be Appropriated for Apportioned Federal-aid Highway Programs for the Period Beginning on October 1, 2011, and Ending on March 31, 2012, Under the Surface Transportation Extension Act of 2011, Part II, Title I Of Public Law 112-30.

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 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, 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 apportioned for the Federal-aid highway programs under the Surface Transportation Extension Act of 2011, Part II, title I of Public Law 112-30 (not including funds subject to the provision in section 111(d)(3)) is $18,738,409,837, which is 100 percent of the amount authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) for the period beginning on October 1, 2011, and ending on March 31, 2012.

Second, that except as otherwise expressly provided in the Surface Transportation Extension Act of 2011, Part II, the funds authorized to be appropriated for the period beginning on October 1, 2011, and ending on March 31, 2012, shall be distributed, administered, limited, and made available for obligation in the same manner and at the same level as ½ of the total amount of funds authorized to be appropriated out of the Highway Trust Fund for FY 2011 (taking into account any rescission or cancellation of funds or contract authority for FY 2011) to carry out programs, projects, activities, eligibilities, and requirements under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users; 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 (excluding chapter 4 of that title).

Third, that in compliance with section 154 of title 23, United States Code, the Open Container Requirements, 3 percent of the Interstate Maintenance, National Highway System, and Surface Transportation Program apportionments for the States of Alaska, Arkansas, Connecticut, Delaware, Louisiana, Mississippi, Missouri, Tennessee, Virginia, West Virginia, and Wyoming will be transferred to the States' 402 Safety Programs.

Fourth, that in compliance with section 164 of title 23, United States Code, the Minimum Penalties for Repeat Offenders for Driving While Intoxicated or Driving Under the Influence, 3 percent of the Interstate Maintenance, National Highway System, and Surface Transportation Program apportionments for the States of Alaska, California, Louisiana, Maryland, Minnesota, Missouri, Montana, New Mexico, Ohio, Oregon, Rhode Island, South Dakota, Vermont, Washington, Wisconsin, and Wyoming will be transferred to the States' 402 Safety Programs (except that the penalty transfer amount for Maryland will be withheld and reserved from transfer pending the outcome of the administrative review by the National Highway Traffic Safety Administration and the Federal Highway Administration).

Fifth, that after making the required deductions and transfers, I have computed the apportionments to each State and the District of Columbia of the remainder of the amounts authorized to be appropriated for the apportioned Federal-aid highway programs in the manner provided by law.

Sixth, that subject to the foregoing deductions and transfers, 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

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