E8-1932. Express Lanes Demonstration Program

AGENCY:

Federal Highway Administration (FHWA), DOT.

ACTION:

Notice; request for applications.

SUMMARY:

Section 1604(b) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59; Aug. 10, 2005), authorizes the Secretary of Transportation (Secretary) to carry out 15 demonstration projects to permit States, public authorities, or public or private entities designated by States, the authority to collect a toll from a motor vehicle on an eligible toll facility. This notice invites States, public authorities, or other entities as designated by States to apply to participate in the Express Lanes Demonstration Program. It also presents guidelines for program applications and participation.

DATES:

Applications must be received no later than May 31, 2009.

FOR FURTHER INFORMATION CONTACT:

For questions about this notice, contact Mr. Wayne Berman, Office of Operations, [phone], ([e-mail]); for legal questions contact Mr. Michael Harkins, Attorney Advisor, Office of the Chief Counsel, [phone], ([e-mail]). The FHWA is located at 1200 New Jersey Avenue, SE., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this document may be downloaded from the Federal Register's home page at: http://www.archives.gov and the Government Printing Office's database at: http://www.access.gpo.gov/​nara.

Background

There is a growing consensus among transportation policymakers and economists that existing financing mechanisms for highway and aviation infrastructure are unsustainable in the long-term and will be unable to keep pace with projected demands on the transportation network. In May 2006, the National Strategy to Reduce Congestion on America's Transportation Network was introduced by the U.S. Department of Transportation to set forth several initiatives to relieve congestion.^[1] The Express Lanes Demonstration Program furthers the goals of the National Strategy to Reduce Congestion by allowing States to better manage congestion and improve their ability to finance new or expanded highway capacity through the use of tolling.

SAFETEA-LU offers States broader authority to use tolling on a pilot or demonstration basis. The Express Lanes Demonstration (ELD) program is a new pilot program that permits tolling on selected new and existing Interstate lanes to manage high levels of congestion, reduce emissions in a non-attainment or maintenance area, or finance added Interstate lanes for the purpose of reducing congestion. The ELD program is one of six Federal tolling programs. There is no special Federal funding specifically authorized for this program. For further information on other Federal tolling programs available, please refer to the Federal Register notice published on January 6, 2006 (71 FR 965), entitled “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU); Opportunities for State and Other Qualifying Agencies to Gain Authority to Toll Facilities Constructed Using Federal Funds.”

Demonstration Projects

Section 1604(b)(2) authorizes the Secretary to carry out 15 demonstration projects under the ELD program. A demonstration project may include more than one facility so long as such facilities interrelate in a regional strategy to manage high levels of congestion, to reduce emissions in a nonattainment area, or to finance the expansion of a highway for the purpose of reducing traffic congestion. There is no special Federal funding specifically authorized for this program. Regular Federal-aid highway funds may be used, subject to the normal eligibility requirements for these funds.

Eligible Project Types

The ELD program permits tolling on any newly constructed Interstate or non-Interstate lanes. In addition, existing Interstate or non-Interstate facilities that are modified or constructed to create toll lanes are eligible to collect tolls on the entire facility. Additionally, existing Interstate or non-Interstate HOV facilities are eligible to collect tolls on the entire facility. Eligible toll facilities fall under four broad categories of new and existing highway capacity. Specifically, section 1604(b)(1)(A) of SAFETEA-LU lists the following four types of eligible toll facilities:

1. A facility in existence on August 10, 2005 (date of enactment of SAFETEA-LU), that collects tolls;

2. A facility in existence on August 10, 2005, that serves high occupancy vehicles (HOV);

3. A facility modified or constructed after August 10, 2005, to create additional tolled lane capacity, including a facility constructed by a private entity or using private funds; and

4. In the case of a new lane added to a previously non-tolled facility, only the new lane.

Definitions

For the purposes of the ELD program, the following definitions are provided to clarify various terms and phrases having special significance in the ELD program:

A “demonstration project,” for the purpose of this program, means a project that involves collecting a toll from a motor vehicle at an eligible toll facility for the purposes of meeting the goals set forth for this program.

A “facility that serves high occupancy vehicles” or “HOV facility” provides any preferential treatment through an exclusive lane(s), park-and-ride lots, or other support facilities or elements. The preferential treatment must give priority to buses, vanpools, carpools or high-occupancy vehicles either all or part of the day. The facility must have been in existence and providing such preferential treatment on August 10, 2005.

An “HOV lane” provides any preferential lane designated for exclusive use by vehicles with 2 or more occupants for all or part of a day, including a designated lane on a freeway, other highway or a street, or independent roadway on a separate right-of-way.

The phrase “modified or constructed” for the purposes of the ELD program means improvements made to the existing lanes. Examples include reconstruction, rehabilitation, resurfacing, or restoring the existing lanes, reconfiguration of entrance and exit ramps, the installation of toll barriers, and restriping to create additional lanes.

“Toll Agreement” means the agreement required to be executed between the FHWA and a State and other public authorities or private entity to grant the authority to collect tolls. The toll agreement must be executed by the Executive Director of the FHWA and the relevant State department of transportation and other third parties, as appropriate, and shall provide that any toll revenues received from the operation of the toll facility will be used in accordance with section 1604(b)(3)(A) of SAFETEA-LU. Each executed agreement constitutes one demonstration project and must be executed between the FHWA, the relevant State department of transportation, and any other applicable public authority or private entity to a demonstration project prior to September 30, 2009.

Tolling Existing Capacity

There are two ways that existing non-tolled capacity may be tolled under this pilot program. First, section 1604(b)(1)(A)(ii) of SAFETEA-LU allows a State to toll a facility in existence on August 10, 2005, that serves high occupancy vehicles. As stated in the definitions, these facilities are those that provide any preferential treatment to buses, vanpools, carpools, or HOVs. One example of a facility eligible for tolling under this provision is one with a designated HOV lane. Another example of a facility that is eligible for tolling under this provision is one with designated commuter parking or is served by bus rapid transit.

Second, section 1604(b)(1)(A)(iii) allows a State to toll a facility that is modified or constructed after August 10, 2005, to create additional tolled lane capacity. This provision would allow States to toll the existing non-tolled lanes when a new toll-lane is created and the existing lanes are modified or constructed (note that section 1604(b)(1)(A)(iv) would only allow the new lane to be tolled if the existing lanes are not modified or constructed). While the existing lanes must be modified or constructed, improvements do not need to be made throughout the entire length of the project. Tolling will be permitted on the existing lanes if the improvements are expected to improve or benefit, directly or indirectly, the operational performance of the entire length of the facility proposed to be tolled. The State must demonstrate these benefits to the FHWA in the required application.

Toll Agreements

As provided at section 1604(b)(3)(C) of SAFETEA-LU, a toll agreement must be executed prior to the collection of tolls on any toll facility under a demonstration project. Since authority to carry-out demonstration projects is only granted through the end of fiscal year 2009, a toll agreement must be executed prior to September 30, 2009. While a toll agreement must be executed prior to September 30, 2009, tolling may commence anytime after this date. In general, the toll agreement will restrict the use of revenues collected on any toll facilities operating under any demonstration project and will be executed by the FHWA, State, and other relevant public authorities or private parties. More details on the revenue use restrictions are discussed below.

Eligible Uses of Revenue

As provided in section 1604(b)(3)(A) of SAFETEA-LU, toll revenues received under the Express Lanes Demonstration Program shall be used by a State, public authority, or private entity designated by a State, for the following purposes:

1. Debt service;

2. Reasonable return on investment of any private financing;

3. To fund the costs necessary for proper operation and maintenance of any facilities used for this demonstration program (including reconstruction, resurfacing, restoration, and rehabilitation); or

4. If the State, public authority, or private entity annually certifies that the eligible toll facility is being adequately operated and maintained, the toll revenues may be used for any other purpose relating to a highway or transit project carried out under title 23 or 49, United States Code.

Electronic Toll Collection

As outlined in section 1604(b)(5) of SAFETEA-LU, fees collected under this program shall be collected only through the use of noncash electronic technology that optimizes the free flow of traffic on the tolled facility. Project sponsors are also encouraged to explore interoperability of other noncash electronic technology in their respective regions. In order to advance the requirements under this Section, a Notice of Proposed Rulemaking, titled “Interoperability Requirements, Standards, or Performance Specifications for Automated Toll Collection Systems” was published in the Federal Register on September 20, 2007, at 72 FR 53736.

HOV Lanes

As provided in section 1604(b)(3)(B)(iii) of SAFETEA-LU, a State may permit motor vehicles with a single occupant to operate in a HOV lane pursuant to 23 U.S.C. 166. Under 23 U.S.C. 166, a State may allow single occupant vehicles to operate in a HOV lane only if the operator is charged a toll. Additionally, 23 U.S.C. 166 permits single occupant motorcycles, bicycles, public transportation vehicles, inherently low emission vehicles (ILEVs), and other low emission and energy efficient vehicles to operate in a HOV lane. However, the exception for ILEVs and other low emission and energy efficient vehicles expires on September 30, 2009. Should a State allow any single occupant vehicles to use a HOV lane, 23 U.S.C. 166(d) mandates that the State carry-out certain responsibilities with respect to enforcement as well as monitoring, evaluating, and reporting on the impacts such vehicles have to the operation of the HOV lane. Title 23 U.S.C. 166(d) also requires the State to limit or discontinue the use of the facility by any single occupant vehicles should the presence of such vehicles on the facility degrade the facility's operation. Additionally, section 1604(b)(3)(B)(ii) requires that the tolls on any HOV facility vary in price according to time of day or level of traffic as appropriate to manage congestion or improve air quality.

Program Coordination and Assistance

The FHWA, Office of Operations, is responsible for coordinating all tolling and pricing programs that now exist under the Federal-aid highway program. The Express Lanes Demonstration Program is one of six tolling programs or provisions that currently exists for Federal-aid highways. The FHWA Tolling and Pricing Opportunities Web site is located at http://www.ops.fhwa.dot.gov/​tolling_​pricing.

The Office of Operations has formed a working group known as the “Tolling and Pricing Team.” The key role for the Tolling and Pricing Team is to assist public authorities by directing them to the most appropriate program (or programs) among the options available. Members of the Tolling and Pricing Team represent the FHWA Offices of Operations and Infrastructure—the primary offices responsible for administering each of the tolling and pricing programs—and other oversight offices within the U.S. Department of Transportation, including, but not limited to the Office of the Secretary and the FHWA Offices of the Administrator and Chief Counsel.

The “Expression of Interest”

A public authority that wants to request authority under any Federal tolling program, including the Express Lanes Demonstration Program, or other tolling and funding authority is asked to submit an Expression of Interest to the Tolling and Pricing Team in care of the FHWA Office of Operations in Washington, DC at the address listed below. Submittal of an Expression of Interest is optional, but is strongly recommended so that the Tolling and Pricing Team can confirm that an application is best suited to the tolling authority requested. An Expression of Interest template can be downloaded at http://www.ops.fhwa.dot.gov/​tolling_​pricing/​participation.htm. Use of the template is optional. The Expression of Interest may be attached as an e-mail to [e-mail], or a hardcopy can be mailed to Mr. Wayne Berman, FHWA Office of Operations, HOTM, 1200 New Jersey Avenue, SE., Washington, DC 20590. Concurrently, the Expression of Interest should be copied to the respective State FHWA Division Office.

The Expression of Interest is a document—in letter, memo, or report format—that provides the rationale for the intended project. A complete Expression of Interest will enable the Tolling and Pricing Team to provide the best assistance and identify the range of options possible to meet intended goals and timeframes. The Tolling and Pricing Team reviews all “Expressions of Interest” for the various tolling opportunities contained in current law but does not have responsibility to approve or disapprove specific projects. That responsibility will remain with each of the respective FHWA program offices responsible for administering a specific tolling and pricing program. By requesting and reviewing all Expressions of Interest, the Tolling and Pricing Team can effectively guide an applicant to the most appropriate program.

Formal Application Procedures

Pursuant to section 1604(b)(4) of SAFETEA-LU, States, public authorities or private entities must submit a formal application to the FHWA in order to be eligible to participate in the program, regardless of whether the recommended Expression of Interest is submitted or not. Applicants are strongly encouraged to coordinate with their contacts at the FHWA Division office in their State as they are developing their application.

A formal application will only be approved if the project meets the necessary requirements and objectives of the program set forth in section 1604(b) of SAFETEA-LU. As outlined in section 1604(b)(4) of SAFETEA-LU, the formal application must contain the following information in order to qualify as a demonstration project:

1. A description of the project, including construction that may be involved;

2. An identification and description of the type of facility proposed to be tolled;

3. A specific description of which lanes are intended to be tolled, and for which limits;

4. A timeline of project development process, including key milestones over the next 3 years and the anticipated date a toll agreement will be executed;

5. A description of the congestion or air quality problems sought to be addressed under the program;

6. A description of the performance goals sought to be achieved under the program, which should include goals related to addressing the effects on travel, traffic, and air quality; the distribution of benefits and burdens on users of the facility; the use of alternative modes of transportation; and the use of revenues to transportation or impact mitigation needs;

7. Plans for regular monitoring and reporting on the achievement of the project's performance goals;

8. An identification of the timing on when the facility will begin tolling motor vehicles and for how long a period tolling will be in effect;

9. Description of the type of noncash technology and standards that will be applied to automate the tolling operations; and

10. Description of tolling strategy considered, for instance, fixed or variable pricing.

The formal application should be submitted directly through the State Department of Transportation to the appropriate FHWA Division Administrator. The FHWA Division will then forward the application to Mr. Wayne Berman, c/o the Office of Operations, HOTM, 1200 New Jersey Avenue, SE., Washington, DC 20590, or via e-mail at [e-mail]. Upon finding that the application provides relevant information pertaining to the above listed factors, the FHWA will determine whether to accept the application and grant authority to toll motor vehicles on the facility. The FHWA's determination will based, in part, upon availability of program slots and competition with other pending and anticipated project applications, including projects that further the objectives of the “Congestion Initiative” (see http://www.fightgridlocknow.gov/​), such as for the Corridors of the Future or the Urban Partnership Initiatives. Any applications received by the FHWA prior to the publication of this Notice need only address the minimum eligibility factors contained in section 1604(b)(4)(A) & (B) of SAFETEA-LU. For further questions about the formal application process, please contact Mr. Wayne Berman, Office of Operations at [phone].

Performance Goals and Monitoring

Pursuant to section 1604(b)(7) of SAFETEA-LU, the Secretary, in cooperation with the State, public authority, private entity, and other program participants must develop performance goals for each project and publish such goals for public comment. These performance goals will first be proposed by the State, public authority, private entity, or other program participant in the formal application to participate in the program. These goals must include goals related to addressing the effects on travel, traffic, and air quality; the distribution of benefits and burdens on users of the facility; the use of alternative modes of transportation; and the use of revenues to transportation or impact mitigation needs. The FHWA will review the performance goals and provide feedback to the applicant if the FHWA has any questions or comments. Once satisfied with the project's performance goals, the FHWA will publish these goals in the Federal Register and solicit public comment, as required in section 1604(b).

Additionally, section 1604(b)(7) of SAFETEA-LU requires the Secretary, in cooperation with the State, public authority, private entity, and other program participants, to establish a program for regular monitoring and reporting on the achievement of the performance goals. A description of the monitoring program should be included in the project's application, and should include a process whereby the State, public authority, private entity, and other program participant will report on the project's achievement of the performance goals by March 31 of each year. In the case where a private entity has been designated by the State to carry out the demonstration project, the private entity shall work with the State in evaluating the performance goals. Once the FHWA is satisfied with the monitoring and reporting program, the FHWA will publish a description of the program in the Federal Register and solicit public comment.

The establishment of the performance goals and a monitoring program required by section 1604(b)(7) of SAFETEA-LU, including the publication of such goals and monitoring in the Federal Register and solicitation of public comment, does not need to occur prior to the FHWA's approval of the State's application.

Authority: Section 1604(b) of Public Law 109-59; 23 U.S.C. 315; 49 CFR 1.48.

Issued on: January 24, 2008.

J. Richard Capka,

Federal Highway Administrator.

Footnotes

1.  Speaking before the National Retail Federation's annual conference on May 16, 2006, in Washington, DC, former U.S. Transportation Secretary Norman Mineta unveiled a new plan to reduce congestion plaguing America's roads, rails, and airports. The National Strategy to Reduce Congestion on America's Transportation Network includes a number of initiatives designed to reduce transportation congestion. The transcripts of these remarks is available at the following URL: http://www.dot.gov/​affairs/​minetasp051606.htm.