23 USC 104 - Apportionment

View all text of Chapter 1 [§ 101 - § 190]

§ 104. Apportionment

(a)Administrative Expenses.—

(1)In general.—There is authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) to be made available to the Secretary for administrative expenses of the Federal Highway Administration—

(A) $490,964,697 for fiscal year 2022;

(B) $500,783,991 for fiscal year 2023;

(D) $521,015,664 for fiscal year 2025; and

(E) $531,435,977 for fiscal year 2026.

(2)Purposes.—The amounts authorized to be appropriated by this subsection shall be used—

(A) to administer the provisions of law to be funded from appropriations for the Federal-aid highway program and programs authorized under chapter 2;

(B) to make transfers of such sums as the Secretary determines to be appropriate to the Appalachian Regional Commission for administrative activities associated with the Appalachian development highway system; and

(C) to reimburse, as appropriate, the Office of Inspector General of the Department of Transportation for the conduct of annual audits of financial statements in accordance with section 3521 of title 31.

(3)Availability.—The amounts made available under paragraph (1) shall remain available until expended.

(b)Division Among Programs of State’s Share of Base Apportionment.—The Secretary shall distribute the amount of the base apportionment apportioned to a State for a fiscal year under subsection (c) among the national highway performance program, the surface transportation block grant program, the highway safety improvement program, the congestion mitigation and air quality improvement program, the national highway freight program, the carbon reduction program under section 175, to carry out subsection (c) of the PROTECT program under section 176, and to carry out section 134 as follows:

(1)National highway performance program.—For the national highway performance program, 59.0771195921461 percent of the amount remaining after distributing amounts under paragraphs (4), (5), and (6).

(2)Surface transportation block grant program.—For the surface transportation block grant program, 28.7402203421251 percent of the amount remaining after distributing amounts under paragraphs (4), (5), and (6).

(3)Highway safety improvement program.—For the highway safety improvement program, 6.70605141316253 percent of the amount remaining after distributing amounts under paragraphs (4), (5), and (6).

(4)Congestion mitigation and air quality improvement program.—

(A)In general.—For the congestion mitigation and air quality improvement program, an amount determined for the State under subparagraphs (B) and (C).

(B)Total amount.—The total amount for the congestion mitigation and air quality improvement program for all States shall be—

(i) $2,536,490,803 for fiscal year 2022;

(ii) $2,587,220,620 for fiscal year 2023;

(iii) $2,638,965,032 for fiscal year 2024;

(iv) $2,691,744,332 for fiscal year 2025; and

(v) $2,745,579,213 for fiscal year 2026.

(C)State share.—For each fiscal year, the Secretary shall distribute among the States the total amount for the congestion mitigation and air quality improvement program under subparagraph (B) so that each State receives an amount equal to the proportion that—

(i) the amount apportioned to the State for the congestion mitigation and air quality improvement program for fiscal year 2020; bears to

(ii) the total amount of funds apportioned to all States for that program for fiscal year 2020.

(5)National highway freight program.—

(A)In general.—For the national highway freight program under section 167, the Secretary shall set aside from the base apportionment determined for a State under subsection (c) an amount determined for the State under subparagraphs (B) and (C).

(B)Total amount.—The total amount set aside for the national highway freight program for all States shall be—

(i) $1,373,932,519 for fiscal year 2022;

(ii) $1,401,411,169 for fiscal year 2023;

(iii) $1,429,439,392 for fiscal year 2024;

(iv) $1,458,028,180 for fiscal year 2025; and

(v) $1,487,188,740 for fiscal year 2026.

(C)State share.—For each fiscal year, the Secretary shall distribute among the States the total set-aside amount for the national highway freight program under subparagraph (B) so that each State receives the amount equal to the proportion that—

(i) the total base apportionment determined for the State under subsection (c); bears to

(ii) the total base apportionments for all States under subsection (c).

(6)Metropolitan planning.—

(A)In general.—To carry out section 134, an amount determined for the State under subparagraphs (B) and (C).

(B)Total amount.—The total amount for metropolitan planning for all States shall be—

(i) $438,121,139 for fiscal year 2022;

(ii) $446,883,562 for fiscal year 2023;

(iii) $455,821,233 for fiscal year 2024;

(iv) $464,937,657 for fiscal year 2025; and

(v) $474,236,409 for fiscal year 2026.

(C)State share.—For each fiscal year, the Secretary shall distribute among the States the total amount to carry out section 134 under subparagraph (B) so that each State receives an amount equal to the proportion that—

(i) the amount apportioned to the State to carry out section 134 for fiscal year 2020; bears to

(ii) the total amount of funds apportioned to all States to carry out section 134 for fiscal year 2020.

(7)Carbon reduction program.—For the carbon reduction program under section 175, 2.56266964565637 percent of the amount remaining after distributing amounts under paragraphs (4), (5), and (6).

(8)PROTECT formula program.—To carry out subsection (c) of the PROTECT program under section 176, 2.91393900690991 percent of the amount remaining after distributing amounts under paragraphs (4), (5), and (6).

(c)Calculation of Amounts.—

(1)State share.—For fiscal year 2022 and each fiscal year thereafter, the amount for each State shall be determined as follows:

(A)Initial amounts.—The initial amounts for each State shall be determined by multiplying—

(i) the base apportionment; by

(ii) the share for each State, which shall be equal to the proportion that—(I) the amount of apportionments that the State received for fiscal year 2021; bears to(II) the amount of those apportionments received by all States for that fiscal year.

(B)Guaranteed amounts.—The initial amounts resulting from the calculation under subparagraph (A) shall be adjusted to ensure that each State receives an aggregate apportionment that is—

(i) equal to at least 95 percent of the estimated tax payments paid into the Highway Trust Fund (other than the Mass Transit Account) in the most recent fiscal year for which data are available that are—(I) attributable to highway users in the State; and(II) associated with taxes in effect on July 1, 2019, and only up to the rate those taxes were in effect on that date;

(ii) at least 2 percent greater than the apportionment that the State received for fiscal year 2021; and

(iii) at least 1 percent greater than the apportionment that the State received for the previous fiscal year.

(2)State apportionment.—On October 1 of fiscal year 2022 and each fiscal year thereafter, the Secretary shall apportion the sums authorized to be appropriated for expenditure on the national highway performance program under section 119, the surface transportation block grant program under section 133, the highway safety improvement program under section 148, the congestion mitigation and air quality improvement program under section 149, the national highway freight program under section 167, the carbon reduction program under section 175, to carry out subsection (c) of the PROTECT program under section 176, and to carry out section 134 in accordance with paragraph (1).

(d)Metropolitan Planning.—

(1)Use of amounts.—

(A)Use.—

(i)In general.—Except as provided in clause (ii), the amounts apportioned to a State under subsection (b)(6) shall be made available by the State to the metropolitan planning organizations responsible for carrying out section 134 in the State.

(ii)States receiving minimum apportionment.—A State that received the minimum apportionment for use in carrying out section 134 for fiscal year 2009 may, subject to the approval of the Secretary, use the funds apportioned under subsection (b)(6) to fund transportation planning outside of urbanized areas.

(B)Unused funds.—Any funds that are not used to carry out section 134 may be made available by a metropolitan planning organization to the State to fund activities under section 135.

(2)Distribution of amounts within states.—

(A)In general.—The distribution within any State of the planning funds made available to organizations under paragraph (1) shall be in accordance with a formula that—

(i) is developed by each State and approved by the Secretary; and

(ii) takes into consideration, at a minimum, population, status of planning, attainment of air quality standards, metropolitan area transportation needs, and other factors necessary to provide for an appropriate distribution of funds to carry out section 134 and other applicable requirements of Federal law.

(B)Reimbursement.—Not later than 15 business days after the date of receipt by a State of a request for reimbursement of expenditures made by a metropolitan planning organization for carrying out section 134, the State shall reimburse, from amounts distributed under this paragraph to the metropolitan planning organization by the State, the metropolitan planning organization for those expenditures.

(3)Determination of population figures.—For the purpose of determining population figures under this subsection, the Secretary shall use the latest available data from the decennial census conducted under section 141(a) of title 13, United States Code.

(e)Certification of Apportionments.—

(1)In general.—The Secretary shall—

(A) on October 1 of each fiscal year, certify to each of the State transportation departments the amount that has been apportioned to the State under this section for the fiscal year; and

(B) to permit the States to develop adequate plans for the use of amounts apportioned under this section, advise each State of the amount that will be apportioned to the State under this section for a fiscal year not later than 90 days before the beginning of the fiscal year for which the sums to be apportioned are authorized.

(2)Notice to states.—If the Secretary has not made an apportionment under this section for a fiscal year beginning after September 30, 1998, by not later than the date that is the twenty-first day of that fiscal year, the Secretary shall submit, by not later than that date, to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate, a written statement of the reason for not making the apportionment in a timely manner.

(3)Apportionment calculations.—

(A)In general.—The calculation of official apportionments of funds to the States under this title is a primary responsibility of the Department and shall be carried out only by employees (and not contractors) of the Department.

(B)Prohibition on use of funds to hire contractors.—None of the funds made available under this title shall be used to hire contractors to calculate the apportionments of funds to States.

(f)Transfer of Highway and Transit Funds.—

(1)Transfer of highway funds for transit projects.—

(A)In general.—Subject to subparagraph (B), amounts made available for transit projects or transportation planning under this title may be transferred to and administered by the Secretary in accordance with chapter 53 of title 49.

(B)Non-federal share.—The provisions of this title relating to the non-Federal share shall apply to the amounts transferred under subparagraph (A).

(2)Transfer of transit funds for highway projects.—

(A)In general.—Subject to subparagraph (B), amounts made available for highway projects or transportation planning under chapter 53 of title 49 may be transferred to and administered by the Secretary in accordance with this title.

(B)Non-federal share.—The provisions of chapter 53 of title 49 relating to the non-Federal share shall apply to amounts transferred under subparagraph (A).

(3)Transfer of funds among states or to an operating administration of the department of transportation.—

(A)In general.—Subject to subparagraph (B), the Secretary may, at the request of a State, transfer amounts apportioned or allocated under this title to the State to another State, or to an operating administration of the Department of Transportation, for the purpose of funding 1 or more projects that are eligible for assistance with amounts so apportioned or allocated.

(B)Apportionment.—The transfer shall have no effect on any apportionment of amounts to a State under this section.

(C)Funds suballocated to urbanized areas.—Amounts that are apportioned or allocated to a State under subsection (b)(3) (as in effect on the day before the date of enactment of the MAP–21) or subsection (b)(2) and attributed to an urbanized area of a State with a population of more than 200,000 individuals under section 133(d) may be transferred under this paragraph only if the metropolitan planning organization designated for the area concurs, in writing, with the transfer request.

(4)Transfer of obligation authority.—Obligation authority for amounts transferred under this subsection shall be transferred in the same manner and amount as the amounts for the projects that are transferred under this section.

(g)Highway Trust Fund Transparency and Accountability Reports.—

(1)Compilation of data.—Not later than 180 days after the date of enactment of the FAST Act, the Secretary shall compile data in accordance with this subsection on the use of Federal-aid highway funds made available under this title.

(2)Requirements.—The Secretary shall ensure that the reports required under this subsection are made available in a user-friendly manner on the public Internet website of the Department of Transportation and can be searched and downloaded by users of the website.

(3)Contents of reports.—

(A)Apportioned and allocated programs.—On a semiannual basis, the Secretary shall make available a report on funding apportioned and allocated to the States under this title that describes—

(i) the amount of funding obligated by each State, year-to-date, for the current fiscal year;

(ii) the amount of funds remaining available for obligation by each State;

(iii) changes in the obligated, unexpended balance for each State, year-to-date, during the current fiscal year, including the obligated, unexpended balance at the end of the preceding fiscal year and current fiscal year expenditures;

(iv) the amount and program category of unobligated funding, year-to-date, available for expenditure at the discretion of the Secretary;

(v) the rates of obligation on and off the National Highway System, year-to-date, for the current fiscal year of funds apportioned, allocated, or set aside under this section, according to—(I) program;(II) funding category or subcategory;(III) type of improvement;(IV) State; and(V) sub-State geographical area, including urbanized and rural areas, on the basis of the population of each such area; and

(vi) the amount of funds transferred by each State, year-to-date, for the current fiscal year between programs under section 126.

(B)Project data.—On an annual basis, the Secretary shall make available a report that provides, for any project funded under this title (excluding projects for which funds are transferred to agencies other than the Federal Highway Administration) with an estimated total cost as of the start of construction greater than $25,000,000, and to the maximum extent practicable, other projects funded under this title, project data describing—

(i) the specific location of the project;

(ii) the total cost of the project;

(iii) the amount of Federal funding obligated for the project;

(iv) the program or programs from which Federal funds have been obligated for the project;

(v) the type of improvement being made, such as categorizing the project as—(I) a road reconstruction project;(II) a new road construction project;(III) a new bridge construction project;(IV) a bridge rehabilitation project; or(V) a bridge replacement project;

(vi) the ownership of the highway or bridge;

(vii) whether the project is located in an area of the State with a population of—(I) less than 5,000 individuals;(II) 5,000 or more individuals but less than 50,000 individuals;(III) 50,000 or more individuals but less than 200,000 individuals; or(IV) 200,000 or more individuals; and

(viii) available information on the estimated cost of the project as of the start of project construction, or the revised cost estimate based on a description of revisions to the scope of work or other factors affecting project cost other than cost overruns.

(h)Base Apportionment Defined.—In this section, the term “base apportionment” means the combined amount authorized for appropriation for the national highway performance program under section 119, the surface transportation block grant program under section 133, the highway safety improvement program under section 148, the congestion mitigation and air quality improvement program under section 149, the national highway freight program under section 167, the carbon reduction program under section 175, to carry out subsection (c) of the PROTECT program under section 176, and to carry out section 134.

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