[Federal Register Volume 83, Number 36 (Thursday, February 22, 2018)]
[Notices]
[Pages 7839-7841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03617]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2017-0006]


Fixing America's Surface Transportation (FAST) Act; Equal Access 
for Over-the-Road Buses Guidance

AGENCY: Federal Highway Administration (FHWA), Department of 
Transportation (DOT).

ACTION: Notice.

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SUMMARY: This Notice announces and outlines the final guidance for 
requirements contained in Section 1411(a) and (b) of the FAST Act 
regarding the treatment of over-the-road buses (OTRBs).

DATES: This guidance is effective February 22, 2018.
    Electronic Access: This document, the request for comments, and the 
comments received may be viewed online through the Federal eRulemaking 
portal at: http://www.regulations.gov. Electronic submission and 
retrieval help and guidelines are available on the website. It is 
available 24 hours each day, 365 days each year. Please follow the 
instructions. An electronic copy of this document may also be 
downloaded from the Office of the Federal Register's website at: http://www.archives.gov/federalregister and the Government Publishing 
Office's website at: http://www.gpo.gov/fdsys.

FOR FURTHER INFORMATION CONTACT: Ms. Cynthia Essenmacher, Federal 
Tolling Program Manager, Center for Innovative Finance Support, Office 
of Innovative Program Delivery, Federal Highway Administration, 315 W. 
Allegan St., Ste. 201, Lansing, MI 48913, (517) 702-1856. For legal 
questions: Mr. Steven Rochlis, Office of the Chief Counsel, Federal 
Highway Administration, 1200 New Jersey Avenue SE, Washington, DC 
20590, (202) 366-1395. Office hours are from 8:00 a.m. to 4:30 p.m. 
E.T., Monday through Friday, except for Federal holidays.

SUPPLEMENTARY INFORMATION: 

Table of Contents

A. Background
B. Summary Discussion of Comments
C. Applicable Definitions for Implementing Section 1411 of the FAST 
Act
D. Covered Facilities Subject to OTRB Equal Access
E. Compliance
F. Effective Date

A. Background

    The FHWA published a Federal Register Notice on April 28, 2017, at 
82 FR 19784, seeking public comment for the FAST Act OTRB provisions 
related to high-occupancy vehicle (HOV) facilities and toll highways. 
In preparing this guidance to assist in the implementation of Section 
1411 of the FAST Act, FHWA considered all public comments submitted to 
the Federal Register Notice.
    Section 1411(a) and (b) of the FAST Act contained new requirements 
regarding the treatment of OTRBs that access toll highways and HOV 
facilities. Specifically, the FAST Act amended 23 U.S.C. 129 and 23 
U.S.C. 166 to address equal access to toll or HOV facilities for OTRBs. 
The FAST Act amendments defined certain key terms but did not define 
other terms. The FHWA considered how to define the terms that were not 
defined under Section 1411 (Section C) as well as enumerating the toll 
facilities subject to the OTRB requirements (Section D), as the OTRB 
amendment related to toll facilities that received or will receive 
Federal participation under 23 U.S.C. 129. In addition, FHWA believes 
that Congress intended that the OTRB equal access provisions be 
effective beginning on December 4, 2015, the enactment date of the FAST 
Act, in contrast to the FAST Act effective date of October 1, 2015, as 
noted further in Sections B and F. Application of the OTRB requirements 
retroactive to the FAST Act enactment date raised potential 
constitutional implications associated with the application prior to 
the enactment date, particularly for those toll facilities operated by 
private taxpayers under agreement with a public authority that may have 
assessed different toll rates to OTRBs during this period between 
October 1, 2015, and December 4, 2015, without notice of the change in 
law.
    For HOV facilities, 23 U.S.C. 166 (b)(3) was amended by the FAST 
Act, adding subparagraph (C) to grant HOV authorities an exception to 
allow public transportation vehicles (which FHWA interprets to include 
all public transportation vehicles, including public transportation 
buses) that do not meet the minimum occupancy requirements to use HOV 
lanes, but only if the HOV authority also gives equal access to OTRBs 
that serve the public. Under this exception, HOV authorities may allow 
all public transportation vehicles to use HOV lanes, whether they meet 
the minimum occupancy requirements or not, if they provide equal access 
to OTRBs serving the public, under the same rates, terms, and 
conditions as all other public transportation vehicles.
    Additionally, 23 U.S.C. 166(b)(4)(C) was amended by the FAST Act, 
adding subparagraph (iii), to grant HOV authorities the alternative to 
toll vehicles not meeting the minimum occupancy requirements in HOV 
lanes. In that case, HOV authorities are required to provide access to 
OTRBs that serve the public under the same rates, terms, and conditions 
as public transportation buses (which FHWA interprets to exclude other 
types of public transportation vehicles, which may be treated 
differently by the HOV authority). Similarly, on toll facilities 
subject to 23 U.S.C. 129, the FAST Act amended 23 U.S.C. 129(a) by 
adding paragraph (9) to also require that OTRBs that serve the public 
be provided access to the toll facility under the same rates, terms, 
and conditions as public transportation buses.

[[Page 7840]]

B. Summary Discussion of Comments

    Comments were submitted to the Federal Register Notice published in 
April 2017. Comments submitted to the docket can be viewed at: https://www.regulations.gov/docketBrowser?rpp=50&so=DESC&sb=postedDate&po=0&dct=PS&D=FHWA-2017-0006.
    Commenters included the public transit constituency, both public 
and private operators, as well as individuals. The respondents directed 
their comments within three categories. The three categories are 
general comments, compliance, and information availability. The 
following summarizes the comments and FHWA's response.
General Comments
     Two commenters recommended that FHWA use the Federal 
Register Notice comments to update and expand existing tolling program 
guidance published on September 24, 2012.
     One commenter inquired about toll transponders recognizing 
exemptions on different facilities.
    FHWA Response: The purpose of the Notice was to solicit comments on 
the new OTRB requirements that FHWA would incorporate into 
implementation of OTRB requirements. Comments concerning expansion of 
the guidance to address tolling guidance and transponder use is beyond 
the scope of the Federal Register Notice.
     One commenter would like to see FHWA explain why certain 
facilities are not included in the Section 129 covered facilities list.
    FHWA Response: Section 1411 of the FAST Act is applicable to 
Federal-aid toll facilities where construction of the facility occurred 
under 23 U.S.C. 129(a) authority. This would include a facility that 
either uses Federal-aid funds on an existing toll facility in 
accordance with section 129(a), or imposes tolls on a facility 
constructed with Federal-aid funds pursuant to section 129(a). 
Facilities under other Federal tolling authority are not subject to 
OTRB requirements.
Compliance Comments
     Three commenters requested that FHWA use the existing 
annual audit process required under 23 U.S.C. 129(a)(3)(B) to determine 
whether tolling facilities are complying with the OTRB equal access 
requirements.
    FHWA Response: The purpose of the annual audit process is to ensure 
facilities are complying with the limits on the use of revenues under 
23 U.S.C. 129, it does not address operational aspects of the toll 
facility.
     Three commenters requested FHWA clearly state that bus 
companies have a legal right to seek refunds from toll operators to 
correct unequal treatment.
    FHWA Response: If an OTRB entity believes equal access was not 
provided by a covered facility any time after December 4, 2015, that 
entity should contact the owner/operator of the facility to request a 
refund. The FHWA does not own, operate, or control the HOV and toll 
facilities subject to the OTRB requirements.
     Three commenters recommended that the FHWA guidance should 
make it clear to Division Administrators and to the public authority 
recipients of Federal funding that the OTRB requirements are already 
effective and have been in effect since October 1, 2015, and do not 
depend on any further guidance or other action by FHWA to be 
enforceable.
    FHWA Response: The FHWA acknowledges that the changes in law are 
effective beginning on the enactment date of the FAST Act on December 
4, 2015, and continue in effect, but believes that the issuance of this 
guidance clarifies the OTRB provisions and will assist affected parties 
that are subject to the OTRB requirements.
Information Availability Comments
     Three commenters suggested that FHWA require that all 
facility agencies create and publish their respective rates, terms, and 
conditions for use of their facilities.
    FHWA Response: The FHWA does not own, operate, and control the toll 
facilities and does not have jurisdiction to impose this suggested 
requirement.
     One commenter requested FHWA amend the Section 129 
facilities list to include the names of the tolling authorities 
responsible for the operation of each facility.
    FHWA Response: The FHWA is publishing an inventory of facilities 
that received Federal-aid funding under 23 U.S.C. 129 and are subject 
to the OTRB provisions. See section D, below.
    All comments were taken into consideration when developing this 
final Federal Register Notice. The following sections of this Notice 
provide the final guidance for implementation of the OTRB requirements. 
This guidance is also available at FHWA's website: [INSERT LINK].

C. Applicable Definitions for Implementing Section 1411 of the FAST Act

    For the purposes of implementing FAST Act Section 1411 amendments 
to 23 U.S.C. 129 and 166, FHWA will use the following definitions 
previously stated in the Federal Register Notice at 82 FR 19784. The 
definitions are:
    ``Over-the-road bus'' is defined as a bus characterized by an 
elevated passenger deck located over a baggage compartment.
    ``Public Transportation Bus'' is a category of public 
transportation vehicle (as defined in 23 U.S.C. 166(f)(6)), consisting 
of a motor vehicle with motive power, except a trailer, designed for 
carrying more than 10 persons.
    ``Public Transportation Vehicle '' means a vehicle that (A) 
provides designated public transportation (as defined in section 221 of 
the Americans with Disabilities Act of 1990 (42 U.S.C. 12141) or 
provides public school transportation (to and from public or private 
primary, secondary, or tertiary schools); and (B)(i) is owned or 
operated by a public entity; (ii) is operated under a contract with a 
public entity; or (iii) is operated pursuant to a license by the 
Secretary or a State agency to provide motorbus or school vehicle 
transportation services to the public.
    ``Serve/Serving the Public'' means provision of service to the 
general public, including general or special service (including charter 
service) on a regular and continuing basis.
    ``Toll Facility'' means a toll highway, bridge, or tunnel or 
approach to the highway, bridge, or tunnel constructed under 23 U.S.C. 
129(a).

D. Covered Facilities Subject to OTRB Equal Access

Section 129 Facilities
    Section 1411 of the FAST Act is applicable to Federal-aid toll 
facilities where construction of the facility occurred under 23 U.S.C. 
129(a) authority. Facilities ``constructed under'' Section 129 includes 
both facilities subject to Section 129 tolling agreements executed 
prior to the Moving Ahead for Progress in the 21st Century Act (MAP-21) 
(Pub. L. 112-141), which eliminated the requirement for a Section 129 
toll agreement, and facilities that have become (or will become) 
subject to Section 129 post-MAP-21 (which may, or may not, have a 
tolling Memorandum of Understanding with FHWA). This would include a 
facility that either uses Federal-aid funds on an existing toll 
facility in accordance with Section 129(a), or imposes tolls on a 
facility constructed with Federal-aid funds pursuant to Section 129(a).
    Federal-aid toll facilities that were constructed under other 
Federal tolling authorities and not subject to Section 1411 of the FAST 
Act are included in the Section 129 Covered Facilities list

[[Page 7841]]

for reference. Other Federal tolling authorities include the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 (Pub. L. 
100-17) and the Intermodal Surface Transportation Efficiency Act of 
1991 (Pub. L. 102-240).
    The OTRB Section 129 Covered Facilities list can be found at the 
FHWA's Center for Innovative Finance Support's website at: https://www.fhwa.dot.gov/ipd/revenue/road_pricing/tolling_pricing/active_agreements.aspx. The FHWA will annually review and update this 
list for additions and completeness.
Section 166 Facilities
    Under 23 U.S.C. 166(f)(2), the term ``HOV facility'' means a high 
occupancy vehicle facility. There are no exclusions or exceptions under 
this definition based on Federal-aid participation in the construction 
or operation of the HOV facility. Therefore, FHWA believes amendments 
made by Section 1411 of the FAST Act are applicable to all Section 166 
HOV facilities, regardless of Federal-aid participation in the project.

E. Compliance

    The requirements of 23 U.S.C. 129(a) and 23 U.S.C. 301 apply to the 
use of Federal-aid funds for construction (as defined at 23 U.S.C. 
101(a)(4)) on tolled highways, bridges, and tunnels, including the use 
of emergency relief funds for repairs to toll facilities (see 23 CFR 
668.109(b)(9)). When Federal funds are used for allowable purposes 
under 23 U.S.C. 129, grantees are required to follow applicable 
statute, regulations, and policies. This includes equal access and 
treatment for OTRBs.

F. Effective Date

    If an OTRB entity believes equal access was not provided by a 
covered facility any time after December 4, 2015, that entity should 
contact the owner/operator of the facility to address this concern.

    Issued on: February 15, 2018.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2018-03617 Filed 2-21-18; 8:45 am]
 BILLING CODE 4910-22-P