154/164 Guidance


    DOT Logo Memorandum
    U.S. Department of
    Transportation

    National Highway
    Traffic Safety
    Administration    		 Federal Highway
    Administration

    Subject: 
    		 Guidance on TEA-21 Transfer Funding     Date: March 31, 2000
     
    From:    		  
    Adele Derby 
    Associate Administrator
    Office of State and Community Services, NHTSA    		 Adele Derby signature
    		    
    Reply to
    Attn. of:
       
    Frederick G. ( Bud) Wright, Jr 
    Program Manager
    Office of Safety, FHWA

    		  
    Frederick G. ( Bud) Wright, Jr signature     		   
     
    To:    		  
    NHTSA Regional Administrators
    FHWA Division Administrators
    FHWA Resource Center Directors    		      


    The TEA-21 Restoration Act established two new transfer programs to encourage States to enact Open Container laws (Section 154) and Repeat Intoxicated Driver laws (Section 164). On October 6, 1998, the National Highway Traffic Safety Administration (NHTSA) and the Federal Highway Administration (FHWA) issued an interim final rule implementing the Open Container Laws transfer program, and on October 19, 1998, NHTSA and FHWA issued an interim final rule implementing the Repeat Intoxicated Driver Laws transfer program. These interim rules explain that, according to the legislation, states have choices as to which apportionments the transferred funds would be derived from and to what uses the funds could be directed. However, the interim rules did not include any guidance concerning how this is to be accomplished to facilitate Federal accounting processes. The agencies have been asked by several States to provide clarification on the procedures to be followed. This guidance is provided below.


    Background

    According to the Section 154 and 164 legislation and interim regulations, any State that does not enact and enforce a conforming open container and repeat intoxicated driver law will be subject to a transfer of funds. If a State does not meet the statutory requirements of either program on October 1, 2000 or October 1, 2001, an amount equal to one and one-half percent of the funds apportioned to the State on those dates under each of Sections 104(b)(1), (b)(3) and (b)(4) of title 23 of the United States Code will be transferred to the State's apportionment under Section 402 of that title for each of the non-complying programs. If a State does not meet the statutory requirements on October 1, 2002, an amount equal to three percent of the funds apportioned to the State on that date under Sections 104(b)(1), (b)(3) and (b)(4) will be transferred for each of the non-complying programs. An amount equal to three percent will continue to be transferred on October 1 of each subsequent fiscal year if the State does not meet the requirements on those dates.

    Each fiscal year, any State determined not to be in compliance with Section 154 and/or Section 164, based on NHTSA's and FHWA's preliminary review of its certification, will be advised of the amount of funds expected to be transferred from the Section 104(b) apportionments. This notification will occur as part of the advance notice of apportionments required under 23 U.S.C. 104(e), normally not later than ninety days prior to final apportionment (July 1). (The State certification procedure, including appropriate wording for each certification, is described in the interim final rule for each transfer program.)


    Determination of Apportionment of Transferred Funds

    The Section 154 and 164 legislation and interim regulations provide that the funds to be transferred may be derived from one or more of the apportionments under Sections 104(b)(1), (b)(3) and (b)(4) [Interstate Maintenance, National Highway System, and Surface Transportation Program]. The total amount to be transferred from a non-conforming State will be calculated based on a percentage of the funds apportioned to the State under each of Sections 104(b)(1), (b)(3) and (b)(4). However, the actual transfers need not be distributed proportionately among these three sources. The transferred funds may come from any one or a combination of the apportionments under Sections 104(b)(1), (b)(3) or (b)(4), as long as the total amount to be transferred comes from one or more of these three sections.


    Guidance:

    On October 1, the transfers to Section 402 apportionments will be made based on proportionate amounts from each of the apportionments under Sections 104(b)(1), (b)(3) and (b)(4). Then (since Revenue Aligned Budget Authority (RABA) is apportioned on October 15), the States will be given until October 30 to notify FHWA, through the appropriate Division Administrator, if they would like to change the distribution among Sections 104(b)(1), (b)(3) and (b)(4).


    Determination of Use of Transferred Funds

    The Section 154 and 164 legislation and interim regulations provide that the funds transferred to Section 402 under this program are to be used for alcohol-impaired driving countermeasures or directed to State and local law enforcement agencies for the enforcement of laws prohibiting driving while intoxicated, driving under the influence or other related laws or regulations. In addition, they provide that States may elect to use all or a portion of the transferred funds for hazard elimination activities under 23 U.S.C. 152.



    Guidance:

    The funds will be transferred from FHWA to NHTSA and will be added to the Section 402 apportionment for the State. Funds will be transferred with obligation limitation from FHWA.

    The Governor's Representative for Highway Safety and the Secretary of the State's Department of Transportation for each State that has funds transferred shall identify jointly, in writing, to the appropriate NHTSA Regional Administrator and FHWA Division Administrator, how the funds will be programmed among alcohol-impaired driving programs, hazard elimination programs, and planning and administration costs (P&A), no later than 60 days after the funds are transferred.

    NHTSA has established specific program area codes for Section 154 and Section 164 funds:

    The State Highway Safety office will account for these funds in these categories through the NHTSA Grant Tracking System (GTS).


    Hazard Elimination Programs

    Section 154 and 164 transfer funds obligated and spent on hazard elimination projects (154HE and 164HE) take on the characteristics and requirements of FHWA's Section 152 Hazard Elimination program. However, no matching funds are required for these transfer funds; per Section 154 (c)(4) and Section 164 (b) (4), the Federal share of the project cost shall be 100 percent. These funds, when used for Section 152 purposes, are in addition to the 10 percent Safety Set-aside funds and may not be used to satisfy the requirements of 23 U.S.C. 133(d)(1).

    For hazard elimination activities, the State Highway Safety office may prepare a single sub-grantee agreement with the State Highway agency to manage all of the hazard elimination transfer funds. Then, the State Highway agency will submit reimbursement requests on a periodic basis (monthly or quarterly) to the State Highway Safety office for processing. These requests must be signed by an official of the State Highway agency who verifies that this request represents reimbursement for costs eligible under Section 152.


    Alcohol-impaired Driving Programs

    Section 154 and 164 funds obligated and spent on alcohol-impaired driving countermeasures or directed to State and local law enforcement agencies for the enforcement of impaired driving laws or regulations (154AL and 164AL) take on the characteristics and requirements of NHTSA's Section 402 program. However, no matching funds are required for these transfer funds; per Section 154 (c)(4) and Section 164 (b) (4), the Federal share of the project cost shall be 100 percent. At least 40% of annual 154AL and 164AL funds must be used by or for the benefit of political subdivisions of the State.


    Planning and Administration

    A maximum of 10% of annual 154 and 164 transfer funds may be used for planning and administration (P&A), with no matching funds required.


    Highway Safety Plan

    After the funding has been transferred, the State must update its Highway Safety Plan (HSP), prepared under Section 402, to indicate how it intends to use the transfer funds. Alternatively, a state may choose to plan ahead. Knowing that there will be a transfer of funds in October, the state may include a program plan for these funds in its highway safety plan submission the preceding September. The discussion of hazard elimination activities would include the total amount to be spent by program type, but need not include specific projects and locations.


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