1. What is the purpose of this Notice? This Notice transmits the certificate of apportionment for apportioned Federal-aid highway program funds authorized for  FY 2018 pursuant to the Fixing America’s Surface Transportation (FAST) Act, Public Law (Pub. L.) 114-94.  The apportionments made available by this Notice are for the following programs:  National Highway Performance Program, Surface Transportation Block Grant Program, Highway Safety Improvement Program, Railway-Highway Crossings Program, Congestion Mitigation and Air Quality Improvement Program, National Highway Freight Program, and Metropolitan Planning Program.  The apportionments are effective immediately.

2. Does this Notice cancel FHWA Notice 4510.816? Yes, this Notice cancels FHWA Notice N4510.816, Apportionment of Federal-aid Highway Program Funds for Fiscal Year 2018, dated October 2, 2017.  The revision to Notice N4510.816 is required due to the inadvertent inclusion of erroneous language within FHWA Notice 4510.816 indicating that the section 159 of title 23, United States Code (U.S.C.), penalty was subject to an administrative review and final determination by the National Highway Traffic Safety Administration (NHTSA).    Unlike other safety penalties identified in this Notice, NHTSA has no role in determining whether a State is in violation of 23 U.S.C. 159, as that determination is delegated to FHWA.  The language referring to NHTSA has been removed from this Notice.

   As indicated in paragraph 7(c), for FY 2018 only one State is subject to the penalty under 23 U.S.C. 159: Maine.  The State of Maine was advised of the amount expected to be withheld from apportionment as part of the advance notice of apportionments issued on June 28, 2017, and has not submitted documentation to demonstrate compliance with 23 U.S.C. 159.  FHWA is required to withhold 8 percent of the amount apportioned to Maine under the National Highway Performance Program (23 U.S.C. 104(b)(1)) and 8 percent of the amount apportioned to Maine under the Surface Transportation Block Grant Program (23 U.S.C. 104(b)(2)).  This determination is not subject to any administrative review after October 1.  In accordance with 23 U.S.C. 159(b), no funds withheld under 23 U.S.C. 159 shall be available for apportionment to Maine.

3. What is the availability of these funds?

1. The funds resulting from this apportionment are available for obligation until September 30, 2021. Any amounts not obligated by the State on or before September 30, 2021, shall lapse.

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.

3. For FY 2018, an amount of National Highway Performance Program funds equal to $639,000,000 prior to sequestration ($596,826,000 after sequestration) that is exempt from obligation controls is provided. See FHWA Notice N4510.817 for additional information on sequestration.

4. The Federal share payable shall be in accordance with section 120 of title 23, U.S.C., except as specifically provided by another provision of law.

5. The program codes to be used when obligating these funds were provided in a separate memorandum issued on January 11, 2016.

6. The Catalog of Federal Domestic Assistance (CFDA) number for these funds is 20.205, with the exception that the CFDA number for the Recreational Trails Program is 20.219.

4. What amounts are authorized and available for apportionment?

1. Section 1101(a)(1)(C) of the FAST Act authorizes a total of $41,424,020,075 for the Federal-aid highway apportioned programs for FY 2018.

2. Of the amount authorized for the apportioned programs, section 104(h)(2) of title 23, U.S.C., reserves a total amount of $968,013,536 as supplemental funds for the Surface Transportation Block Grant Program (of which $850,000,000 is for the Transportation Alternatives set-aside under section 133(h) of title 23, U.S.C.).

3. After the reservation of supplemental funds for the Surface Transportation Block Grant Program, the remaining available amount of $40,456,006,539 is the base apportionment amount.

5. How are the State-by-State amounts determined?

1. Pursuant to section 104(c)(1)(A) of title 23, U.S.C., the initial amounts of the FY 2018 base apportionment and Surface Transportation Block Grant Program supplemental funds for a State are calculated by multiplying the total amount available for each by the ratio of that State’s FY 2015 combined amount of apportionments to the total FY 2015 combined amount of apportionments for all States.

2. Pursuant to section 104(c)(1)(B) of title 23, U.S.C., the initial amounts are then adjusted to ensure that each State’s aggregate amount of apportionments for the base apportionment and supplemental funds is not less than 95 percent of the estimated tax payments attributable to highway users in that State paid into the Highway Trust Fund (other than the Mass Transit Account) in the most recent fiscal year for which data is available.

6. How are the program-by-program amounts determined?

1. From each State’s total base apportionment determined under section 104(c)(1) of title 23, U.S.C., an amount is set aside for the National Highway Freight Program. Pursuant to section 104(b)(5) of title 23, U.S.C., the set-aside amount for each State is calculated by multiplying the total FY 2018 set-aside amount of $1,200,000,000 for all States by the ratio of that State’s total base apportionment to the total base apportionments for all States.

2. Of the amount set aside within a State for the National Highway Freight Program, an amount is made available for the Metropolitan Planning Program. This amount is calculated by multiplying the National Highway Freight Program set-aside amount for each State by the ratio of that State’s FY 2009 apportionment for the Metropolitan Planning Program to that State’s total FY 2009 apportionments.

3. Pursuant to section 104(b)(4) of title 23, U.S.C., of a State’s base apportionment amount remaining after the set-aside for the National Highway Freight Program, an amount is distributed for the Congestion Mitigation and Air Quality Improvement Program. This amount is calculated by multiplying the remaining amount of the base apportionment to the State by the ratio of that State’s FY 2009 apportionment for the Congestion Mitigation and Air Quality Improvement Program to that State’s total FY 2009 apportionments.

4. Pursuant to section 104(b)(6) of title 23, U.S.C., of a State’s base apportionment amount remaining after the set-aside for the National Highway Freight Program, an amount is distributed for the Metropolitan Planning Program. This amount is calculated by multiplying the remaining amount of the base apportionment to the State by the ratio of that State’s FY 2009 apportionment for the Metropolitan Planning Program to that State’s total FY 2009 apportionments. The resulting amount is added to the amount of Metropolitan Planning Program funding made available from the National Highway Freight Program, as described above.

5. After making the set-aside for the National Highway Freight Program and distributing the amounts for the Congestion Mitigation and Air Quality Improvement Program and the Metropolitan Planning Program, pursuant to paragraphs (1) through (3) of section 104(b) of title 23, U.S.C., the remainder of the base apportionment to a State is distributed in the following proportions: 63.7 percent for the National Highway Performance Program, 29.3 percent for the Surface Transportation Block Grant Program, and 7 percent for the Highway Safety Improvement Program.

6. The Surface Transportation Block Grant Program supplemental funds for a State are treated as if apportioned under section 104(b)(2) of title 23, U.S.C. The supplemental funds amount is added to that State’s Surface Transportation Block Grant Program amount calculated from the base apportionment.

7. Section 130(e)(1) of title 23, U.S.C., instructs that a total of $235,000,000 for FY 2018 shall be set aside from the Highway Safety Improvement Program prior to the apportionment of that program for the Railway-Highway Crossings Program. The Railway-Highway Crossings Program amount for each State is determined by distributing the $235,000,000 total amount according to the formula in section 130(f) of title 23, U.S.C. The resulting Railway-Highway Crossings Program amount for a State is then set aside from that State’s initial Highway Safety Improvement Program amount.

8. Pursuant to section 1519(a) of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, as amended by the FAST Act, a total of $3,500,000 for FY 2018 is set aside from the Highway Safety Improvement Program prior to the apportionment of that program to carry out safety-related activities and operate authorized safety-related clearinghouses under such section. The set-aside is made on a proportional basis from each State’s initial Highway Safety Improvement Program amount.

9. A State’s official Highway Safety Improvement Program apportionment is the initial Highway Safety Improvement Program amount net of the Railway-Highway Crossings Program set-aside amount and the set-aside amount under section 1519(a) of MAP-21. In addition, the $3,500,000 amount set aside under section 1519(a) of MAP-21 is classified as allocated funding for safety-related activities and clearinghouses and, therefore, does not appear in the table of State-by-State apportionments.

10. Table 1 shows the State-by-State, program-by-program FY 2018 apportionment amounts (before post-apportionment set-asides, before penalties, and before sequestration) available under the FAST Act.

7. Are certain States subject to transfer or withholding penalties?Yes.  Currently, the States that are listed under the following requirements are subject to transfer or withholding penalties.

1. Open Container Requirements – 23 U.S.C. 154 – 2.5 percent

   Funds subject to transfer penalty:  National Highway Performance Program and Surface Transportation Block Grant Program.

   Alaska, Arkansas, Connecticut, Delaware, Hawaii, Louisiana, Maine, Mississippi, Missouri, Ohio, Tennessee, Utah, Virginia, and Wyoming

   The funds subject to transfer for a State in noncompliance with section 154 of title 23, U.S.C., are reserved and then, in the proportions elected by the State, released for use on eligible Highway Safety Improvement Program activities under section 148 of title 23, U.S.C., or transferred to the State’s safety program under section 402 of title 23, U.S.C.

   The transfer penalties under section 154 of title 23, U.S.C., are subject to an administrative review by NHTSA; the amount for each State subject to transfer will be reserved pending the completion of the administrative review and subsequently will be administered under the provisions of section 154 or restored to the State’s apportionments depending on the final determination by NHTSA.

   Table 2 shows the transfer penalty amounts under section 154 of title 23, U.S.C., subject to section 154(c)(5), which authorizes a State to designate how the total transfer penalty amount is to be derived from the National Highway Performance Program and the Surface Transportation Block Grant Program.

2. Minimum Penalties for Repeat Offenders for Driving While Intoxicated or Driving Under the Influence – 23 U.S.C. 164 – 2.5 percent

   Funds subject to transfer penalty:  National Highway Performance Program and Surface Transportation Block Grant Program.

   Alaska, California, Colorado, Hawaii, Indiana, Louisiana, Minnesota, Montana, New Mexico, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Vermont, Washington, and Wyoming

   The funds subject to transfer for a State in noncompliance with section 164 of title 23, U.S.C., are reserved and then, in the proportions elected by the State, released for use on eligible Highway Safety Improvement Program activities under section 148 of title 23, U.S.C., or transferred to the State’s safety program under section 402 of title 23, U.S.C.
   The transfer penalties under section 164 of title 23, U.S.C., are subject to an administrative review by NHTSA; the amount for each State subject to transfer will be reserved pending the completion of the administrative review and subsequently will be administered under the provisions of section 164 or restored to the State’s apportionments depending on the final determination by NHTSA.

   The penalties under section 164 of title 23, U.S.C., are also subject to the ability of a State to submit a “general practice” certification under     section 164(a)(5)(C), which will be reviewed by NHTSA.  As such, for States that submit a certification, these penalty funds will be reserved pending the outcome of the certification review process by NHTSA.  States that are found to be compliant based on the certification review process will have their funds restored to the State’s apportionments.

   Table 3 shows the transfer penalty amounts under section 164 of title 23, U.S.C., subject to section 164(b)(5), which authorizes a State to designate how the total transfer penalty amount is to be derived from the National Highway Performance Program and the Surface Transportation Block Grant Program.

3. Revocation or Suspension of Drivers’ Licenses for Drug Offenders – 23 U.S.C. 159 – 8 percent

   Funds subject to withholding penalty:  National Highway Performance Program and Surface Transportation Block Grant Program.

   Maine

   The penalty funds for a State under section 159 of title 23, U.S.C., are withheld from apportionment and lapse immediately.

   Table 4 shows the withholding penalty amounts under section 159 of title 23, U.S.C.

8. What other amounts are related to these apportionments? Supplementary tables showing other amounts related to these apportionments will be issued at a later date via a separate notice.  The amounts shown in the supplementary tables will include set-asides (State Planning & Research, Transportation Alternatives, etc.), suballocations for the Surface Transportation Block Grant Program and the Transportation Alternatives set-aside, and various limiting amounts.

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

Attachments

CERTIFICATE OF APPORTIONMENT FROM THE SUM OF $41,424,020,075
AUTHORIZED TO BE APPROPRIATED FOR APPORTIONED FEDERAL-AID HIGHWAY
PROGRAMS FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2018

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 Fixing America’s Surface Transportation Act, and title 23 of the United States Code, 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 program under the Fixing America’s Surface Transportation Act, Public Law 114-94, is $41,424,020,075, which is 100 percent of the amount authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) for Fiscal Year 2018.

Second, that I have computed the apportionment to each State and the District of Columbia of the amounts authorized to be appropriated for the apportioned Federal-aid highway programs and further computed the distribution among the programs within each State and the District of Columbia in the manner provided by law.

Third, pursuant to section 1519(a) of the Moving Ahead for Progress in the 21st Century Act, Public Law 112-141, as amended by the Fixing America’s Surface Transportation Act, I have set aside $3,500,000 to carry out safety-related activities and operate authorized safety-related clearinghouses under such section.  Such amount is set aside from the Highway Safety Improvement Program prior to the apportionment of that program under section 104(b)(3) of title 23, United States Code.  The resulting amount for all apportioned Federal-aid Highway programs after such set-aside is $41,420,520,075.

Fourth, that in compliance with section 154 of title 23, United States Code, the Open Container Requirements, 2.5 percent of the National Highway Performance Program and Surface Transportation Block Grant Program apportionments for the States of Alaska, Arkansas, Connecticut, Delaware, Hawaii, Louisiana, Maine, Mississippi, Missouri, Ohio, Tennessee, Utah, Virginia, and Wyoming are reserved for release for use on eligible Highway Safety Improvement Program activities or transfer to the States’ 402 Safety Programs pending the outcome of the administrative review process.

Fifth, 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, 2.5 percent of the National Highway Performance Program and Surface Transportation Block Grant Program apportionments for the States of Alaska, California, Colorado, Hawaii, Indiana, Louisiana, Minnesota, Montana, New Mexico, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Vermont, Washington, and Wyoming are reserved for release for use on eligible Highway Safety Improvement Program activities or transfer to the States’ 402 Safety Programs pending the outcome of the administrative and “general practice” certification review processes.

Sixth, that in compliance with section 159 of title 23, United States Code, the Revocation or Suspension of Drivers’ Licenses for Drug Offenders, 8 percent of the National Highway Performance Program and Surface Transportation Block Grant Program apportionments for the State of Maine are withheld and lapse immediately.

Seventh, subject to the above-mentioned penalties, that 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