Funding Federal-aid Highways

Office of Policy and Governmental Affairs

Publication No. FHWA-PL-17-011
January 2017

Endnotes

[1] In the government-wide Federal budgetary context, the term “apportionment” is at times used to refer to the action by which the Office of Management and Budget (OMB) distributes amounts available for obligation, including budgetary reserves established pursuant to law, in an appropriation or fund account.

[2] TEA-21 was enacted on June 9, 1998. A technical correction act to the TEA-21 was included as Title IX of Public Law 105-206, the Internal Revenue Restructuring and Reform Act of 1998, enacted July 22, 1998. Title IX is cited as the “TEA 21 Restoration Act.”

[3] 23 U.S.C. 167(i).

[4] 23 U.S.C. 117.

[5] The Legislative Reorganization Act of 1946.

[6] Although there are additional steps between committee approval and consideration on the floor of Congress, such as passing through the Rules Committee in the House, they are omitted for brevity.

[7] There are two other forms of budget authority: borrowing authority and authority related to the use of offsetting receipts and collections. These are not discussed in this document.

[8] Section 4 of Public Law 67-244, enacted June 19, 1922.

[9] Section 401(d)(1)(B) of Public Law 93-344.

[10] Beginning in FY 2008, the revenues from highway-user taxes deposited in the Highway Account of the Highway Trust Fund were insufficient to support the levels of funding authorized for the FAHP and other programs from the Highway Account (see Chapter 7 of this report for more information). The result was that less than 90 percent of the Highway Account receipts were attributable to highway-user taxes. Despite that fact, the Congress continued to authorize contract authority for the FAHP. This was possible for one of two reasons: (1) no one raised a point of order against the bill authorizing contract authority; or (2) Congress agreed to waive any point of order against the bill.

[11] In lieu of an explicit mention of 23 U.S.C. 118(a), Congress will at times instead use a more general reference to a program’s funding being “available for obligation in the same manner is if the funds were apportioned under chapter 1 of title 23”; see, for example, section 1119(g)(2) of Public Law 109-59. This also makes the funding contract authority.

[12] Section 1123 of Public Law 114-94.

[13] Section 1437 of Public Law 114-94.

[14] 23 U.S.C. 118(a).

[15] If FHWA apportions funds in a manner inconsistent with statute, GAO has opined that the Agency must adjust the apportionments appropriately (41 Comp. Gen. 16 (1961)).

[16] 23 U.S.C. 119(f)(1)(A)(ii).

[17] 23 U.S.C. 144(h)(5).

[18] 23 U.S.C. 116(d).

[19] 23 U.S.C. 505.

[20] 23 U.S.C. 133(h).

[21] 23 U.S.C. 133(f).

[22] Section 1437 of Public Law 114-94.

[23] 23 U.S.C. 133(d)(1)(A).

[24] 23 U.S.C. 133(d)(4)(A).

[25] 23 U.S.C. 133(d)(6).

[26] 23 U.S.C. 133(d)(1)(B).

[27] 23 U.S.C. 133(h)(5).

[28] 23 U.S.C. 133(h)(2).

[29] Section 1101(b)(3) of Public Law 114-94.

[30] Codified in title 23 as the Nationally Significant Freight and Highway Projects program (23 U.S.C. 117).

[31] Section 1702 of Public Law 109-59.

[32] Section 1934 of Public Law 109-59.

[33] Section 10212 of Public Law 109-59.

[34] Section 1302 of Public Law 109-280 and sections 101(s)(4) and 112 of Public Law 110-244.

[35] Section 413 of Public Law 111-147.

[36] The deficit target amounts were amended and the target for a zero deficit delayed until FY 1993 by the Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987.

[37] Certain programs were exempt from sequester, including Social Security, Medicaid, veteran’s compensation, Aid to Families with Dependent Children, food stamps, and others. Certain health care programs, such as Medicare and veterans’ health care, were subject to sequester, but the percentage that could be sequestered was capped.

[38] 23 U.S.C. 106(a).

[39] 23 U.S.C. 118(b)(2).

[40] 23 U.S.C. 118(b)(2).

[41] 23 U.S.C. 120.

[42] 23 U.S.C. 120(a).

[43] 23 U.S.C. 120(b).

[44] 23 U.S.C. 120(e).

[45] 23 U.S.C. 143.

[46] 23 U.S.C. 120(c)(1).

[47] 23 U.S.C. 120(c)(3).

[48] For many years Federal law prohibited the use of tapered match by making each individual progress payment subject to the project-specific Federal share. However, section 1302(2) of the Transportation Equity Act for the 21st Century (Public Law 105-178) struck that provision of law—and with it the prohibition on tapered match.

[49] 23 U.S.C. 121(b).

[50] 23 U.S.C. 323.

[51] 23 U.S.C. 120(i).

[52] 23 U.S.C. 120(j).

[53] 23 U.S.C. 120(k).

[54] 23 U.S.C. 206(f)(4).

[55] 23 U.S.C. 206(f)(3).

[56] Public Law 93-344, enacted July 12, 1974.

[57] Section 1102(b) of Public Law 114-94.

[58] See for example section 120 of Division L of Public Law 114-113, the Consolidated Appropriations Act, 2016.

[59] Section 1102(c)(1) of Public Law 114-94.

[60] Section 1102(c)(3) of Public Law 114-94.

[61] Section 1102(e) of Public Law 114-94.

[62] Section 1102(c) of Public Law 114-94.

[63] Section 1102(d) of Public Law 114-94.

[64] Section 1102(f) of Public Law 114-94.

[65] This is a rare occurrence. The last such action was in 1980 when an additional $1.4 billion in liquidating cash was provided by the Supplemental Appropriations and Rescission Act, 1980 (Public Law 96-304).

[66] 23 U.S.C. 121(c).

[67] The Federal-aid Primary and Secondary Systems were the roads eligible for Federal assistance at the time.

[68] Most fuel taxes continue at the rate of 4.4 cents per gallon after this date and the heavy vehicle use tax continues through September 30, 2023, but deposit of the proceeds in the Highway Trust Fund ceases after September 30, 2022.

[69] The Surface Transportation Assistance Act of 1982 required one-ninth of the fuel tax revenue collected at that time—about 1 cent per gallon—to be deposited in the Mass Transit Account. This provision has been amended several times, and the “one-ninth” ratio no longer applies. Effective October 1, 1997, the deposit to the Mass Transit Account is 2.86 cents per gallon of most taxable highway motor fuels.

[70] Effective January 1, 1987, the Leaking Underground Storage Tank Trust Fund was established and an additional tax of 0.1 cent per gallon on highway and other fuels was dedicated to this fund.

[71] In the case of gasohol and certain other alcohol blends, the 2.5 cents per gallon continued to be directed to the General Fund.

[72] Motor Carrier Safety Act of 1984, codified in 49 U.S.C. 521.

[73] Section 9503(b)(5) of the Internal Revenue Code of 1986, classified to 26 U.S.C 9503(b)(5).

[74] Section 9503(b)(5) of the Internal Revenue Code of 1986, classified to 26 U.S.C. 9503(b)(5).

[75] Section 9602(b) of the Internal Revenue Code of 1986, classified to 26 U.S.C. 9602(b).

[76] Section 9004(a) of Public Law 105-178 prohibited crediting interest to the Highway Trust Fund. Section 441 of Public Law 111-147 subsequently eliminated this prohibition, re-instating the Trust Fund’s ability to collect interest.

[77] Section 9601 of the Internal Revenue Code of 1986, classified to 26 U.S.C. 9601. The law requires deposits to be made at least monthly, and the practice is to make such deposits twice each month.

[78] 23 U.S.C. 104(c)(1)(B).

[79] Section 2002 of Public Law 114-41, amending section 9503(f) of the Internal Revenue Code of 1986, as in effect on July 31, 2015.

[80] Previously called the Aquatic Resources Trust Fund

[81] Section 9503(c) of the Internal Revenue Code of 1986, classified to 26 U.S.C. 9503(c).

[82] Aviation kerosene used in commercial aviation is taxed at 4.4 cents per gallon and fuel used in noncommercial (general) aviation is taxed at 21.9 cents per gallon. Each of these rates include the 0.1 cent per gallon for the LUST Trust Fund).

[83] The Byrd Amendment is named for Senator Harry Flood Byrd of Virginia who was a member of the Senate Finance Committee at the time the Highway Revenue Act of 1956 was being debated. His concern for the future solvency of the Highway Trust Fund led to the amendment of the bill.

[84] The Rostenkowski Rule is named for Representative Dan Rostenkowski of Illinois, who chaired the House Committee on Ways and Means during the creation of the Mass Transit Account.

[85] Section 11102 of Public Law 109-59.

[86] Section 9503(d) of the Internal Revenue Code of 1986, classified to 26 U.S.C. 9503(d).

[87] For example, the Highway Account balance dropped dramatically enough during FY 2008 to lead Congress to transfer in additional cash from the General Fund. However, throughout that entire period, the Highway Account continued to pass the Byrd Test.