II 

115TH CONGRESS 

2D SESSION S. 2634 

To free States to spend gas taxes on their transportation priorities, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 9, 2018 

Mr. PORTMAN (for himself and Mr. ISAKSON) 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, and for other purposes. 

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 adding at the end the fol9 lowing: 


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

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

3 Notwithstanding any other provision of law and in accord4 ance with this section, a State may elect not to participate 

5 in any Federal program relating to highways, including 

6 a Federal highway program under the Safe, Accountable, 

7 Flexible, Efficient Transportation Equity Act: A Legacy 

8 for Users (Public Law 109–59; 119 Stat. 1144), the Mov9 ing Ahead for Progress in the 21st Century Act (Public 

10 Law 112–141; 126 Stat. 405), the Fixing America’s Sur11 face Transportation Act (Public Law 114–94; 129 Stat. 

12 1312), this title, or title 49. 

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

14 ‘‘(1) IN GENERAL.—The Secretary shall carry 

15 out a direct Federal-aid highway program (referred 

16 to in this section as the ‘program’) in accordance 

17 with the requirements of this section under which 

18 the legislature of a State may elect, not fewer than 

19 90 days before the beginning of a fiscal year— 

20 ‘‘(A) to waive the right of the State to re21 ceive amounts apportioned or allocated to the 

22 State under this chapter for the fiscal year to 

23 which the election relates; and 

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

25 year that is determined in accordance with sub26 section (e) for that fiscal year. 


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

2 paragraph (1), a State— 

3 ‘‘(A) assumes all Federal obligations relat4 ing to each program that is the subject of the 

5 election; and 

6 ‘‘(B) shall fulfill those obligations using 

7 the amounts transferred to the State under 

8 subsection (e). 

9 ‘‘(3) ELIGIBLE YEARS.—A State may make an 

10 election with respect to fiscal year 2019 and any fis11 cal year thereafter. 

12 ‘‘(c) STATE RESPONSIBILITY.— 

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

14 making an election under subsection (b) shall— 

15 ‘‘(A) agree to maintain the Interstate Sys16 tem in accordance with the current Interstate 

17 System program; 

18 ‘‘(B) submit a plan to the Secretary de19 scribing— 

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

21 to which amounts received under the pro22 gram will be put; and 

23 ‘‘(ii) which programmatic require24 ments of this title the State elects to con25 tinue; 


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

2 received under the program exclusively for 

3 projects that would be eligible for funding 

4 under section 133(b) if the State was not par5 ticipating in the program; and 

6 ‘‘(D) agree— 

7 ‘‘(i) to report annually to the Sec8 retary on the use of amounts received 

9 under the program; and 

10 ‘‘(ii) to make the report available to 

11 the public in an easily accessible format. 

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

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

14 expenditure or obligation of funds received by a 

15 State under the program shall not be subject to any 

16 Federal requirement under this title (except for this 

17 section), title 49, or any other Federal law (includ18 ing regulations). 

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

20 under subsection (b) shall be irrevocable during the 

21 applicable fiscal year. 

22 ‘‘(d) EFFECT ON PREEXISTING COMMITMENTS.—An 

23 election under subsection (b) shall not affect any responsi24 bility or commitment of the State under this title for any 

25 fiscal year with respect to— 


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

2 title (other than under this section); or 

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

4 title in any fiscal year for which an election under 

5 subsection (b) is not in effect. 

6 ‘‘(e) TRANSFERS.— 

7 ‘‘(1) IN GENERAL.—The amount to be trans8 ferred to a State under the program for a fiscal year 

9 shall be the portion of the taxes appropriated to the 

10 Highway Trust Fund (other than for the Mass 

11 Transit Account) for that fiscal year that is attrib12 utable to highway users in that State during that 

13 fiscal year, reduced by a pro rata share withheld by 

14 the Secretary to fund contract authority for pro15 grams of the National Highway Traffic Safety Ad16 ministration and the Federal Motor Carrier Safety 

17 Administration. 

18 ‘‘(2) TRANSFERS UNDER PROGRAM.— 

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

20 program— 

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

22 deposits to the Highway Trust Fund are 

23 made by the Secretary of the Treasury; 

24 and 

25 ‘‘(ii) shall— 


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1 ‘‘(I) be made on the basis of esti2 mates by the Secretary, in consulta3 tion with the Secretary of the Treas4 ury, based on the most recent data 

5 available; and 

6 ‘‘(II) include proper adjustments 

7 in amounts subsequently transferred 

8 to the extent prior estimates were in 

9 excess of, or less than, the amounts 

10 required to be transferred. 

11 ‘‘(B) LIMITATION.— 

12 ‘‘(i) IN GENERAL.—An adjustment 

13 under subparagraph (A)(ii)(II) to any 

14 transfer may not exceed 5 percent of the 

15 transferred amount to which the adjust16 ment relates. 

17 ‘‘(ii) ADJUSTMENT GREATER THAN 5

18 PERCENT.—If the adjustment required 

19 under subparagraph (A)(ii)(II) exceeds the 

20 percentage described in clause (i), the ex21 cess shall be taken into account in making 

22 subsequent adjustments under subpara23 graph (A)(ii)(II). 

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

25 contract authority under this chapter (and any obligation 


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

2 which an election by that State is in effect under sub3 section (b)— 

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

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

6 any other State under this chapter. 

7 ‘‘(g) MAINTENANCE OF EFFORT.— 

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

9 after the date on which an amount is distributed to 

10 a State or State agency under the program, the Gov11 ernor of the State shall certify to the Secretary that 

12 the State will maintain the effort of the State with 

13 regard to State funding for the types of projects 

14 that are funded by the amounts distributed. 

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

16 under paragraph (1), the Governor shall submit to 

17 the Secretary a statement that identifies the amount 

18 of funds the State plans to expend from State 

19 sources during the covered period for the types of 

20 projects that are funded by the amounts. 

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

22 purposes of this section, any general revenue funds appro23 priated to the Highway Trust Fund shall be transferred 

24 to a State under the program in the manner described 

25 in subsection (e)(1).’’. 


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1 (b) CONFORMING AMENDMENT.—The analysis for 

2 chapter 1 of title 23, United States Code, is amended by 

3 inserting after the item relating to section 170 the fol4 lowing: 

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

5 SEC. 3. ALTERNATIVE FUNDING OF PUBLIC TRANSPOR6 TATION PROGRAMS. 

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

8 States Code, is amended by adding at the end the fol9 lowing: 

10 ‘‘§ 5341. Alternative funding of public transportation 

11 programs 

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

13 ‘‘(1) the term ‘alternative funding program’ 

14 means the program established under subsection (c); 

15 ‘‘(2) the term ‘covered program’ means a Fed16 eral public transportation program that is funded 

17 using amounts made available from the Mass Tran18 sit Account of the Highway Trust Fund; and 

19 ‘‘(3) the term ‘Federal public transportation 

20 program’ means a Federal program that provides 

21 funding for public transportation, including under— 

22 ‘‘(A) the Safe, Accountable, Flexible, Effi23 cient Transportation Equity Act: A Legacy for 

24 Users (Public Law 109–59; 119 Stat. 1144); 


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1 ‘‘(B) the Moving Ahead for Progress in the 

2 21st Century Act (Public Law 112–141; 126 

3 Stat. 405); 

4 ‘‘(C) the Fixing America’s Surface Trans5 portation Act (Public Law 114–94; 129 Stat. 

6 1312); 

7 ‘‘(D) title 23; or 

8 ‘‘(E) this chapter. 

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

10 Notwithstanding any other provision of law and in accord11 ance with this section, a State may elect not to participate 

12 in any covered program. 

13 ‘‘(c) DIRECT PUBLIC TRANSPORTATION FUNDING

14 PROGRAM.— 

15 ‘‘(1) IN GENERAL.—The Secretary shall carry 

16 out a direct public transportation funding program 

17 in accordance with the requirements of this section 

18 under which the legislature of a State may elect, not 

19 fewer than 90 days before the beginning of a fiscal 

20 year— 

21 ‘‘(A) to waive the right of the State to re22 ceive amounts apportioned or allocated to the 

23 State under the covered programs for the fiscal 

24 year to which the election relates; and 


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

2 year that is determined in accordance with sub3 section (f). 

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

5 paragraph (1), a State— 

6 ‘‘(A) assumes all Federal obligations relat7 ing to each program that is the subject of the 

8 election; and 

9 ‘‘(B) shall fulfill those obligations using 

10 the amounts transferred to the State under 

11 subsection (f). 

12 ‘‘(3) ELIGIBLE YEARS.—A State may make an 

13 election with respect to fiscal year 2019 and any fis14 cal year thereafter. 

15 ‘‘(d) STATE RESPONSIBILITY.— 

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

17 that participates in the alternative funding program 

18 shall— 

19 ‘‘(A) submit a plan to the Secretary that 

20 describes— 

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

22 to which amounts received under the alter23 native funding program will be put; and 


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1 ‘‘(ii) which programmatic require2 ments of the covered programs the State 

3 elects to continue; 

4 ‘‘(B) agree to obligate or expend amounts 

5 received under the alternative funding program 

6 exclusively for projects that would be eligible for 

7 funding under the covered programs if the 

8 State was not participating in the alternative 

9 funding program; 

10 ‘‘(C) submit to the Secretary an annual re11 port on the use of amounts received under the 

12 alternative funding program; and 

13 ‘‘(D) make the annual report available to 

14 the public in an easily accessible format. 

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

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

17 expenditure or obligation of funds received by a 

18 State under the alternative funding program shall 

19 not be subject to the requirements of— 

20 ‘‘(A) this chapter (except for this section); 

21 ‘‘(B) any covered program not under this 

22 chapter; 

23 ‘‘(C) title 23; or 

24 ‘‘(D) any other Federal law (including reg25 ulations). 


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

2 under subsection (c) shall be irrevocable during the 

3 applicable fiscal year. 

4 ‘‘(e) EFFECT ON PREEXISTING COMMITMENTS.—An 

5 election by a State under subsection (c) shall not affect 

6 any responsibility or commitment of the State with respect 

7 to a project or program funded under a covered program 

8 in a fiscal year for which an election under subsection (c) 

9 is not in effect. 

10 ‘‘(f) TRANSFERS.— 

11 ‘‘(1) IN GENERAL.—The amount to be trans12 ferred to a State under the alternative funding pro13 gram for a fiscal year shall be the portion of the 

14 taxes transferred to the Mass Transit Account of the 

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

16 Internal Revenue Code of 1986 for that fiscal year 

17 that is attributable to highway users in that State 

18 during that fiscal year. 

19 ‘‘(2) TRANSFERS UNDER PROGRAM.— 

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

21 alternative funding program— 

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

23 transfers to the Mass Transit Account of 

24 the Highway Trust Fund are made by the 

25 Secretary of the Treasury; and 


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1 ‘‘(ii) shall— 

2 ‘‘(I) be made on the basis of esti3 mates by the Secretary, in consulta4 tion with the Secretary of the Treas5 ury, based on the most recent data 

6 available; and 

7 ‘‘(II) include proper adjustments 

8 in amounts subsequently transferred 

9 under the alternative funding pro10 gram, to the extent prior estimates 

11 were in excess of, or less than, the 

12 amounts required to be transferred 

13 under the alternative funding pro14 gram. 

15 ‘‘(B) LIMITATION.— 

16 ‘‘(i) IN GENERAL.—An adjustment 

17 under subparagraph (A)(ii)(II) to any 

18 transfer may not exceed 5 percent of the 

19 transferred amount to which the adjust20 ment relates. 

21 ‘‘(ii) ADJUSTMENT GREATER THAN 5

22 PERCENT.—If the adjustment required 

23 under subparagraph (A)(ii)(II) exceeds the 

24 percentage described in clause (i) of this 

25 subparagraph, the excess shall be taken 


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1 into account in making subsequent adjust2 ments under subparagraph (A)(ii)(II). 

3 ‘‘(g) APPLICATION WITH OTHER AUTHORITY.—Any 

4 contract authority under a covered program (and any obli5 gation limitation) authorized for a State for a fiscal year 

6 for which the State elects to participate in the alternative 

7 funding program shall be rescinded or canceled. 

8 ‘‘(h) MAINTENANCE OF EFFORT.— 

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

10 after the date on which amounts are distributed to 

11 a State or State agency under the alternative fund12 ing program, the Governor of the State shall certify 

13 to the Secretary that the State will maintain the ef14 fort of the State with regard to State funding for 

15 the types of projects that are funded by the amounts 

16 distributed. 

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

18 under paragraph (1), the Governor shall submit to 

19 the Secretary a statement that identifies the amount 

20 of funds the State plans to expend from State 

21 sources for projects funded under the alternative 

22 funding program during the fiscal year for which the 

23 State elects to participate in the alternative funding 

24 program. 


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1 ‘‘(i) TREATMENT OF GENERAL REVENUES.—For 

2 purposes of this section, any general revenue funds appro3 priated to the Mass Transit Account of the Highway Trust 

4 Fund shall be transferred to a State under the alternative 

5 funding program in the manner described in subsection 

6 (f)(1).’’. 

7 (b) CONFORMING AMENDMENT.—The analysis for 

8 chapter 53 of title 49, United States Code, is amended 

9 by inserting after the item relating to section 5340 the 

10 following: 

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

Æ 


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