II 

112TH CONGRESS 

1ST SESSION S. 1446 

To free States to spend gas taxes on their transportation priorities. 

IN THE SENATE OF THE UNITED STATES 

JULY 28, 2011 

Mr. COBURN (for himself, Mr. MCCAIN, Mr. LEE, Mr. DEMINT, Mr. PAUL, 

Mr. VITTER, Mr. KYL, Mr. CORNYN, Mr. HATCH, Mr. COATS, Mr. CHAMBLISS, Mr. BURR, Mr. ISAKSON, and Mr. PORTMAN) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works 

A BILL 

To free States to spend gas taxes on their transportation 

priorities. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘State Transportation 

5 Flexibility Act’’. 

6 SEC. 2. DIRECT FEDERAL-AID HIGHWAY PROGRAM. 

7 (a) IN GENERAL.—Chapter 1 of title 23, United 

8 States Code, is amended by inserting after section 149 the 

9 following: 


pwalker on DSK5TPTVN1PROD with BILLS
2 

•S 1446 IS

1 ‘‘§ 150. Direct Federal-aid highway program 

2 ‘‘(a) ELECTION BY STATE NOT TO PARTICIPATE.— 

3 Notwithstanding any other provision of law, a State may 

4 elect not to participate in any Federal program relating 

5 to highways, including a Federal highway program under 

6 the SAFETEA–LU (Public Law 109–59; 119 Stat. 

7 1144), this title, or title 49. 

8 ‘‘(b) DIRECT FEDERAL-AID HIGHWAY PROGRAM.— 

9 ‘‘(1) IN GENERAL.—Beginning in fiscal year 

10 2011, the Secretary shall carry out a direct Federal11 aid highway program in accordance with the require12 ments of this section under which the legislature of 

13 a State may elect, not fewer than 90 days before the 

14 beginning of a fiscal year— 

15 ‘‘(A) to waive the right of the State to re16 ceive amounts apportioned or allocated to the 

17 State under the Federal-aid highway program 

18 for the fiscal year to which the election relates; 

19 and 

20 ‘‘(B) to receive an amount for that fiscal 

21 year that is determined in accordance with sub22 section (e) for that fiscal year. 

23 ‘‘(2) EFFECT.—On making an election under 

24 paragraph (1), a State— 


pwalker on DSK5TPTVN1PROD with BILLS
3 

•S 1446 IS

1 ‘‘(A) assumes all Federal obligations relat2 ing to each program that is the subject of the 

3 election; and 

4 ‘‘(B) shall fulfill those obligations using 

5 the amounts transferred to the State under 

6 subsection (e). 

7 ‘‘(c) STATE RESPONSIBILITY.— 

8 ‘‘(1) IN GENERAL.—The Governor of a State 

9 making an election under subsection (b) shall— 

10 ‘‘(A) agree to maintain the Interstate Sys11 tem in accordance with the current Interstate 

12 System program; 

13 ‘‘(B) submit a plan to the Secretary de14 scribing— 

15 ‘‘(i) the purposes, projects, and uses 

16 to which amounts received under the pro17 gram will be put; and 

18 ‘‘(ii) which programmatic require19 ments of this title the State elects to con20 tinue; 

21 ‘‘(C) agree to obligate or expend amounts 

22 received under the direct Federal-aid highway 

23 program exclusively for projects that would be 

24 eligible for funding under section 133(b) if the 

25 State was not participating in the program; and 


pwalker on DSK5TPTVN1PROD with BILLS
4 

•S 1446 IS

1 ‘‘(D) agree to report annually to the Sec2 retary on the use of amounts received under the 

3 direct Federal-aid highway program and to 

4 make the report available to the public in an 

5 easily accessible format. 

6 ‘‘(2) NO FEDERAL LIMITATION ON USE OF

7 FUNDS.—Except as provided in paragraph (1), the 

8 expenditure or obligation of funds received by a 

9 State under the direct Federal-aid highway program 

10 shall not be subject to any Federal regulation under 

11 this title (except for this section), title 49, or any 

12 other Federal law. 

13 ‘‘(3) ELECTION IRREVOCABLE.—An election 

14 under subsection (b) shall be irrevocable during the 

15 applicable fiscal year. 

16 ‘‘(d) EFFECT ON PREEXISTING COMMITMENTS.— 

17 The making of an election under subsection (b) shall not 

18 affect any responsibility or commitment of the State under 

19 this title for any fiscal year with respect to— 

20 ‘‘(1) a project or program funded under this 

21 title (other than under this section); or 

22 ‘‘(2) any project or program funded under this 

23 title in any fiscal year for which an election under 

24 subsection (b) is not in effect. 

25 ‘‘(e) TRANSFERS.— 


pwalker on DSK5TPTVN1PROD with BILLS
5 

•S 1446 IS

1 ‘‘(1) IN GENERAL.—The amount to be trans2 ferred to a State under the direct Federal-aid high3 way program for a fiscal year shall be the portion 

4 of the taxes appropriated to the Highway Trust 

5 Fund under section 9503 of the Internal Revenue 

6 Code of 1986, other than for the Mass Transit Ac7 count, for that fiscal year that is attributable to 

8 highway users in that State during that fiscal year, 

9 reduced by a pro rata share withheld by the Sec10 retary to fund contract authority for programs of 

11 the National Highway Traffic Safety Administration 

12 and the Federal Motor Carrier Safety Administra13 tion. 

14 ‘‘(2) TRANSFERS UNDER PROGRAM.— 

15 ‘‘(A) IN GENERAL.—Transfers under the 

16 program— 

17 ‘‘(i) shall be made at the same time as 

18 deposits to the Highway Trust Fund are 

19 made by the Secretary of the Treasury; 

20 and 

21 ‘‘(ii) shall be made on the basis of es22 timates by the Secretary, in consultation 

23 with the Secretary of the Treasury, based 

24 on the most recent data available, and 

25 proper adjustments shall be made in 


pwalker on DSK5TPTVN1PROD with BILLS
6 

•S 1446 IS

1 amounts subsequently transferred to the 

2 extent prior estimates were in excess of, or 

3 less than, the amounts required to be 

4 transferred. 

5 ‘‘(B) LIMITATION.—An adjustment under 

6 subparagraph (A)(ii) to any transfer may not 

7 exceed 5 percent of the transferred amount to 

8 which the adjustment relates. If the adjustment 

9 required under subparagraph (A)(ii) exceeds 

10 that percentage, the excess shall be taken into 

11 account in making subsequent adjustments 

12 under subparagraph (A)(ii). 

13 ‘‘(f) APPLICATION WITH OTHER AUTHORITY.—Any 

14 contract authority under this chapter (and any obligation 

15 limitation) authorized for a State for a fiscal year for 

16 which an election by that State is in effect under sub17 section (b)— 

18 ‘‘(1) shall be rescinded or canceled; and 

19 ‘‘(2) shall not be reallocated or distributed to 

20 any other State under the Federal-aid highway pro21 gram. 

22 ‘‘(g) MAINTENANCE OF EFFORT.— 

23 ‘‘(1) IN GENERAL.—Not later than 30 days 

24 after the date on which an amount is distributed to 

25 a State or State agency under the State Highway 


pwalker on DSK5TPTVN1PROD with BILLS
7 

•S 1446 IS

1 Flexibility Act or an amendment made by that Act, 

2 the Governor of the State shall certify to the Sec3 retary that the State will maintain the effort of the 

4 State with regard to State funding for the types of 

5 projects that are funded by the amounts. 

6 ‘‘(2) AMOUNTS.—As part of the certification, 

7 the Governor shall submit to the Secretary a state8 ment identifying the amount of funds the State 

9 plans to expend from State sources during the cov10 ered period, for the types of projects that are funded 

11 by the amounts. 

12 ‘‘(h) TREATMENT OF GENERAL REVENUES.—For 

13 purposes of this section, any general revenue funds appro14 priated to the Highway Trust Fund shall be transferred 

15 to a State under the program in the manner described 

16 in subsection (e)(1).’’. 

17 (b) CONFORMING AMENDMENT.—The analysis for 

18 title 23, United States Code, is amended by inserting after 

19 the item relating to section 149 the following: 

‘‘150. Direct Federal-aid highway program’’. 

20 SEC. 3. ALTERNATIVE FUNDING OF PUBLIC TRANSPOR21 TATION PROGRAMS. 

22 (a) IN GENERAL.—Chapter 53 of title 49, United 

23 States Code, is amended by adding at the end the fol24 lowing: 


pwalker on DSK5TPTVN1PROD with BILLS
8 

•S 1446 IS

1 ‘‘§ 5341. Alternative funding of public transportation 

2 programs 

3 ‘‘(a) DEFINITIONS.—In this section— 

4 ‘‘(1) ALTERNATIVE FUNDING PROGRAM.—The 

5 term ‘alternative funding program’ means the pro6 gram established under subsection (c). 

7 ‘‘(2) COVERED PROGRAMS.—The term ‘covered 

8 programs’ means the programs authorized under— 

9 ‘‘(A) sections 5305, 5307, 5308, 5309, 

10 5310, 5311, 5316, 5317, 5320, 5335, 5339, 

11 and 5340; and 

12 ‘‘(B) section 3038 of the Federal Transit 

13 Act of 1998 (49 U.S.C. 5310 note). 

14 ‘‘(b) ELECTION BY STATE NOT TO PARTICIPATE.— 

15 ‘‘(1) IN GENERAL.—Notwithstanding any other 

16 provision of law, a State may elect not to participate 

17 in all Federal programs relating to public transpor18 tation funded under the Mass Transit Account of 

19 the Highway Trust Fund, including the Federal 

20 public transportation programs under the 

21 SAFETEA–LU (Public Law 109–59; 119 Stat. 

22 1144), title 23, or this title. 

23 ‘‘(2) EFFECT.—On making an election under 

24 paragraph (1), a State— 


pwalker on DSK5TPTVN1PROD with BILLS
9 

•S 1446 IS

1 ‘‘(A) assumes all Federal obligations relat2 ing to each program that is the subject of the 

3 election; and 

4 ‘‘(B) shall fulfill those obligations using 

5 the amounts transferred to the State under 

6 subsection (e). 

7 ‘‘(c) PUBLIC TRANSPORTATION PROGRAM.— 

8 ‘‘(1) PROGRAM ESTABLISHED.—Beginning in 

9 fiscal year 2011, the Secretary shall carry out an al10 ternative funding program under which the legisla11 ture of a State may elect, not fewer than 90 days 

12 before the beginning of a fiscal year— 

13 ‘‘(A) to waive the right of the State to re14 ceive amounts apportioned or allocated to the 

15 State under the covered programs for the fiscal 

16 year to which the election relates; and 

17 ‘‘(B) to receive an amount for that fiscal 

18 year that is determined in accordance with sub19 section (e). 

20 ‘‘(2) PROGRAM REQUIREMENTS.— 

21 ‘‘(A) IN GENERAL.—The Governor of a 

22 State that participates in the alternative fund23 ing program shall— 

24 ‘‘(i) submit a plan to the Secretary 

25 describing— 


pwalker on DSK5TPTVN1PROD with BILLS
10 

•S 1446 IS

1 ‘‘(I) the purposes, projects, and 

2 uses to which amounts received under 

3 the alternative funding program will 

4 be put; and 

5 ‘‘(II) which programmatic re6 quirements of this title the State 

7 elects to continue; 

8 ‘‘(ii) agree to obligate or expend 

9 amounts received under the alternative 

10 funding program exclusively for projects 

11 that would be eligible for funding under 

12 the covered programs if the State was not 

13 participating in the alternative funding 

14 program; and 

15 ‘‘(iii) submit to the Secretary an an16 nual report on the use of amounts received 

17 under the alternative funding program, 

18 and to make the report available to the 

19 public in an easily accessible format. 

20 ‘‘(B) NO FEDERAL LIMITATION ON USE OF

21 FUNDS.—Except as provided in subparagraph 

22 (A), the expenditure or obligation of funds re23 ceived by a State under the alternative funding 

24 program shall not be subject to the provisions 


pwalker on DSK5TPTVN1PROD with BILLS
11 

•S 1446 IS

1 of this title (except for this section), title 23, or 

2 any other Federal law. 

3 ‘‘(3) ELECTION IRREVOCABLE.—An election 

4 under paragraph (1) shall be irrevocable during the 

5 applicable fiscal year. 

6 ‘‘(d) EFFECT ON PREEXISTING COMMITMENTS.— 

7 Participation in the alternative funding program shall not 

8 affect any responsibility or commitment of the State under 

9 this title for any fiscal year with respect to— 

10 ‘‘(1) a project or program funded under this 

11 title (other than under this section); or 

12 ‘‘(2) any project or program funded under this 

13 title in any fiscal year for which the State elects not 

14 to participate in the alternative funding program. 

15 ‘‘(e) TRANSFERS.— 

16 ‘‘(1) IN GENERAL.—The amount to be trans17 ferred to a State under the alternative funding pro18 gram for a fiscal year shall be the portion of the 

19 taxes transferred to the Mass Transit Account of the 

20 Highway Trust Fund under section 9503(e) of the 

21 Internal Revenue Code of 1986, for that fiscal year, 

22 that is attributable to highway users in that State 

23 during that fiscal year. 

24 ‘‘(2) TRANSFERS.— 


pwalker on DSK5TPTVN1PROD with BILLS
12 

•S 1446 IS

1 ‘‘(A) IN GENERAL.—Transfers under the 

2 program— 

3 ‘‘(i) shall be made at the same time as 

4 transfers to the Mass Transit Account of 

5 the Highway Trust Fund are made by the 

6 Secretary of the Treasury; and 

7 ‘‘(ii) shall be made on the basis of es8 timates by the Secretary, in consultation 

9 with the Secretary of the Treasury, based 

10 on the most recent data available, and 

11 proper adjustments shall be made in 

12 amounts subsequently transferred, to the 

13 extent prior estimates were in excess of, or 

14 less than, the amounts required to be 

15 transferred. 

16 ‘‘(B) LIMITATION.—An adjustment under 

17 subparagraph (A)(ii) to any transfer may not 

18 exceed 5 percent of the transferred amount to 

19 which the adjustment relates. If the adjustment 

20 required under subparagraph (A)(ii) exceeds 

21 that percentage, the excess shall be taken into 

22 account in making subsequent adjustments 

23 under subparagraph (A)(ii). 

24 ‘‘(f) CONTRACT AUTHORITY.—There shall be re25 scinded or canceled any contract authority under this 


pwalker on DSK5TPTVN1PROD with BILLS
13 

•S 1446 IS

1 chapter (and any obligation limitation) authorized for a 

2 State for a fiscal year for which the State elects to partici3 pate in the alternative funding program. 

4 ‘‘(g) MAINTENANCE OF EFFORT.— 

5 ‘‘(1) IN GENERAL.—Not later than 30 days 

6 after the date on which an amount is distributed to 

7 a State or State agency under the State Highway 

8 Flexibility Act or an amendment made by that Act, 

9 the Governor of the State shall certify to the Sec10 retary that the State will maintain the effort of the 

11 State with regard to State funding for the types of 

12 projects that are funded by the amounts. 

13 ‘‘(2) AMOUNTS.—The certification under para14 graph (1) shall include a statement identifying the 

15 amount of funds the State plans to expend from 

16 State sources for projects funded under the alter17 native funding program, during the fiscal year for 

18 which the State elects to participate in the alter19 native funding program. 

20 ‘‘(h) TREATMENT OF GENERAL REVENUES.—For 

21 purposes of this section, any general revenue funds appro22 priated to the Highway Trust Fund shall be transferred 

23 to a State under the program in the manner described 

24 in subsection (e).’’. 


pwalker on DSK5TPTVN1PROD with BILLS
14 

•S 1446 IS

1 (b) CONFORMING AMENDMENT.—The analysis for 

2 title 49, United States Code, is amended by inserting after 

3 the item relating to section 5340 the following: 

‘‘5341. Alternative funding of public transportation programs’’. 

Æ 


pwalker on DSK5TPTVN1PROD with BILLS