10-Week CR, 1-Year FAST Act Extension Signed Into Law

At 1 a.m. on October 1, President Trump signed into law a 72-day stopgap appropriations bill (H.R. 8337) for fiscal year 2021 that also incorporated a one-year extension of funding levels under the FAST Act of 2015, all of which had otherwise expired an hour earlier.

The government continued, uninterrupted, for that hour. (Office of Management and Budget policy for years has been that if a lapse in appropriations occurs but the duration is less than the time it would take to make formal notifications of a lapse in appropriations, it’s not worth noticing.)

The legislation passed the House on September 22 by a vote of 359 to 57 (with one voting “present”) and passed the Senate on the afternoon of September 30 by a vote of 84 to 10.

The bill makes $276 billion in appropriations (19.73 percent of the enacted 2020 total of $1.4 trillion), and creates an additional $58.7 billion in Highway Trust Fund contract authority for the year 2021, the same amount provided by the FAST Act for fiscal year 2020. (We summarized the surface extension last week in this article.)

OMB issued a bulletin on the morning of October 1 apportioning the appropriations in the bill to federal agencies and setting the rules for operating under the CR. That bulletin specifies that every account gets 19.73 percent of its enacted 2020 appropriation (net of rescissions that are carried forward, a list of which is attached to the bulletin), except for accounts that received money in FY 2020 which are zeroed out in either the House 2021 bill or the Senate 2021 bill. At the Department of Transportation, the only account that were funded in 2020 but zeroed out in the 2021 House bill is FRA Rail Restoration and Enhancement Grants, so that account will not get an automatic apportionment of funding under the CR.

Apportioning the contract authority provided in Division B of the new law is a separate process. The Federal Highway Administration will apportion an estimated $43.4 billion of the $47.1 billion in highway contract authority created by the law via formula, all at once, in a big apportionment notice expected in the next two weeks. A separate notice distributing 19.73 percent of the $46.4 billion 2020 obligation limitation on the exercise of that contract authority ($9.15 billion), per the CR, will be released by FHWA at the same time.

While the surface transportation extension also creates $10.15 billion in contract authority for the Federal Transit Administration’s formula grant account, it has not been FTA practice in the past to apportion full-year amounts of contract authority on October 1, as is FHWA practice. Instead, FTA waits as long as possible for a year-long appropriations measure to be enacted and then gives out the full-year contract authority and obligation limitation at the same time. In recent years, however, the appropriations process has gotten so dysfunctional that FTA has started to do partial-year apportionments, but only if a CR lasts at least five months.

This may be the year that FTA needs to change that policy. The CR gives FTA $2.0 billion of 2021 obligation limitation (19.73 percent of $10.15 billion), at a time when many transit agencies are facing a severe cash crunch. Transit agencies might petition FTA to go ahead and distribute the $2 billion share of 2021 funding under the ten-week CR, despite previous FTA precedent to the contrary.

The $13.6 billion transfer of money from the general fund of the Treasury to the Highway Trust Fund should be credited during the month of October.

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