[Federal Register Volume 73, Number 23 (Monday, February 4, 2008)]
[Notices]
[Pages 6549-6552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1932]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration


Express Lanes Demonstration Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice; request for applications.

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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, (202) 366-4069, 
([email protected]); for legal questions contact Mr. Michael 
Harkins, Attorney Advisor, Office of the Chief Counsel, (202) 366-4928, 
([email protected]). 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

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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.
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    \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.
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    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

[[Page 6551]]

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 [email protected], 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

[[Page 6552]]

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 
[email protected]. 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 (202) 
366-4069.

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.
[FR Doc. E8-1932 Filed 2-1-08; 8:45 am]
BILLING CODE 4910-22-P