Summary

Section 104(b) of Title 23 of the U.S. Code requires the Secretary of Transportation to make an annual apportionment among the states of federal-aid highway funds authorized to be drawn from the Highway Trust Fund. The Highway Trust Fund is funded from federal highway user tax receipts and is the principal mechanism for funding federal highway programs. Based in part on specified formulas, and after making certain required set-asides, 23 U.S.C. 104(b) directs the Secretary to apportion the authorized sums for the following highway-related programs using formulas based on "total lane miles".

We conclude that DOT may include privately operated or maintained highway lane miles in the calculation used to apportion highway funds to states under 23 U.S.C. 104(b). We note further that pending legislation--S. 884, the Transportation Equity for All Americans Act, which you have introduced--would change the statutory apportionment formulas. Among other things, the bill would explicitly exclude lane miles traveled on privatized highways from most of DOT's apportionment determinations under 23 U.S.C. 104 and 105.