Federal-Aid Highway Program Guidance on High Occupancy Vehicle (HOV) Facilities
September 2016

Chapter III Overview of Statutory Provisions

The purpose of this chapter is to inform the reader of the statutory provisions covering high occupancy vehicle (HOV) facilities, but also to advise FHWA Division Office staff and the public on guidance relating to the administration and application of these provisions of law.

Statutory Basis

Section 166 of title 23, United States Code (U.S.C.) contains the HOV provisions. Section 1411 of the Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94), signed into law on December 4, 2015, included the most recent amendments to the prior HOV provisions. A copy of section 166, as amended by the FAST Act is provided in Appendix A. A copy of 23 U.S.C. 129 as amended by the FAST Act is provided for informational purposes as well in Appendix B.

Program Feature

"Public authorities" that have jurisdiction over the operation of an HOV facility on a Federal-aid highway manage day-to-day HOV facility operations subject to the requirements in 23 U.S.C. 166 and 23 CFR Part 656. A public authority is defined for these purposes as a State, interstate compact of States, public entity designated by a State, or local government having jurisdiction over the operation of the facility. The term "authority" is also used as shorthand below in some cases.

Occupancy Requirement - 23 U.S.C. 166(a)

A public authority that has jurisdiction over the operation of an HOV facility has authority to establish the occupancy requirements of vehicles operating on the facility except that the minimum number of occupants required to use an HOV lane is "no fewer than two," except for certain exemptions explained in the following section

Allowable Exceptions - 23 U.S.C. 166(b)(1)

Subject to various requirements specified in the statute, 23 U.S.C. 166 authorizes five specific vehicle classes to travel on HOV facilities under an exemption from the "no fewer than two" vehicle occupancy requirement: (1) motorcycles and bicycles (with qualifications); (2) public transportation vehicles and over-the-road buses; (3) high occupancy tolled (HOT) vehicles; (4) low emission and energy-efficient vehicles (defined therein, but essentially alternative fuel vehicles) until Sept. 30, 2025; and (5) other low emission and energy efficient vehicles identified under EPA-certified qualifications through Sept. 30, 2019.

Motorcycles and Bicycles - 23 U.S.C. 166(b)(2)

Motorcycles and bicycles shall be allowed to use the HOV facility unless the public authority certifies that such use would create a safety hazard and the Secretary of Transportation accepts the certification after publishing notice of the certification and providing an opportunity for public comment. Some public authorities may require toll transponders not to effect payment, as these vehicles are noted to be exempt, but as a means to identify these vehicles as part and parcel of all tracked vehicles in the subject lanes. In the case of three-wheeled open cockpit vehicles and other non-traditional vehicles, the State's definition of "motorcycle" prevails to determine any qualifications for exemption.

Public Transportation Vehicles and Over-the-Road Buses - 23 U.S.C. 166(b)(3)

Public transportation vehicles and over-the-road buses may be allowed to use the HOV facility, even with only one occupant (i.e., the driver), providing conditions in the statute are satisfied. The public authority must establish procedures for how these vehicles will be clearly identified and for enforcement of restrictions on the use of the HOV facility by the vehicles. Public transportation vehicles are defined in 23 U.S.C. 166(f)(6) as those providing designated public transportation as defined in the Americans with Disabilities Act of 1990 (42 U.S.C. 12141) or providing public school transportation, and that are owned or operated by a public entity, operated under contract with a public entity, or operated pursuant to a license issued by the Secretary or a public authority to provide motorbus or school vehicle transportation services to the public. Under 23 U.S.C. 166(b)(3)(C) and 23 U.S.C. 166(b)(4)(C)(iii), the public authority must provide and ensure equal access under the same rates, terms, and conditions for all public transportation vehicles and over-the-road buses serving the public. An over-the-road bus is defined in 23 U.S.C. 166(f)(4) as a bus as defined in section 301 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181) ["a bus characterized by an elevated passenger deck located over a baggage compartment"].

High Occupancy Toll Vehicles - 23 U.S.C. 166(b)(4)

Public authorities may allow vehicles not otherwise exempt to use the HOV facility if the vehicle operator pays a toll (i.e., high occupancy toll, or "HOT" vehicles). Typically, this involves vehicles not meeting the occupancy requirements for the HOV facility, such as single occupant vehicles on an HOV2 facility. If a public authority decides to allow HOT vehicles to use an HOV lane, the public authority must: (1) establish programs addressing how operators of HOT vehicles can enroll and participate in the toll program; (2) develop, manage, and maintain a system that will automatically collect the toll; and (3) establish policies and procedures to manage the demand to use the facility by such vehicles by varying the toll amount, and to enforce violations of use of the facility. Single-occupant (i.e., driver only) public transportation buses and over-the-road buses exempted by the public authority under conditions meeting the tenets of “same rates, terms and conditions” described elsewhere would already be exempted by class, so in those cases, the issue of whether or not there is a single driver is moot. However, any single driver buses, et al, that are not otherwise afforded exemption by class by the public authority would not be accorded exemption from tolls.

Low Emission and Energy-Efficient Vehicles (Including Alternative Fuel Vehicles and Vehicles Described in Section 30D(d)(1) of the Internal Revenue Code of 1986) - 23 U.S.C. 166(b)(5)

Certain low emission and energy efficient vehicles (as described further below) may be allowed to use the HOV facility with only one occupant (i.e., the driver) provided the public authority establishes procedures to enforce the restrictions on the use of the HOV facility by these vehicles. Typically, this authorization is done via permit, sticker, or transponder. These vehicles may be charged no toll or a toll that is less than tolls charged to HOTs.

Alternative Fuel Vehicles and Electric Plug-in Vehicles

The FAST Act extended the existing opportunity for a public authority to exempt alternative fuel vehicles (hydrogen, ethanol, methanol, non-petroleum, et al, as described in "definitions" of this provision) and new qualified electric plug-in vehicles (as defined in section 30(D)(d)(1) of the Internal Revenue Code of 1986) through September 29, 2025. After that date, the public authority must discontinue allowing the use of such vehicle in HOV lanes unless such vehicle has the required number of occupants or Congress extends this provision. "Alternative fuel vehicles" are vehicles that operate solely on: methanol or other alcohols; a mixture of at least 85 percent methanol or other alcohols by volume with gasoline or other fuels; natural gas; liquefied petroleum gas; hydrogen; coal derived liquid fuels; fuels (except alcohol) derived from biological materials; electricity; or any other fuel that the Secretary prescribes by regulation that is not substantially petroleum and that would yield substantial energy security and environmental benefits. 23 U.S.C. 166(f)(1).

Other Low Emission and Energy-Efficient Vehicles

The FAST Act extended the opportunity for a public authority to exempt other low emission and energy-efficient vehicles (certified to meet Tier II, Clean Air Act, et al, as fully described in "definitions" of this provision) through September 29, 2019. After that date, the public authority must discontinue allowing use of such vehicle in HOV lanes unless the vehicle has the required number of occupants or Congress extends this provision.

23 U.S.C. 166(f)(3) defines "low emission and energy-efficient vehicles" as those that have been: (1) certified by the EPA as meeting the Tier II emission level established pursuant to section 202(i) of the Clean Air Act (42 U.S.C. 7521(i)) for a given make and model year; (2) certified by the EPA as achieving not less than a 50 percent increase in city fuel economy or not less than a 25 percent increase in combined city-highway fuel economy relative to a comparable vehicle that is an internal combustion gasoline fueled vehicle (other than a vehicle that has propulsion energy from on-board hybrid sources). The EPA is responsible to issue the rules that establish the certification and labeling requirements for low emission and energy-efficient vehicles.

23 U.S.C. 166(d)(2)(C) permits public authorities to implement a more stringent definition of low emission and energy-efficient vehicles in order to better manage the performance of their HOV lanes when used by these vehicles. For example, the public authority may choose to allow only low emission and energy-efficient vehicles that can demonstrate an 85 percent increase in city fuel economy and a 25 percent increase in city-highway fuel economy, or a 45 percent increase in combined city/highway fuel economy and a 50 percent increase in city fuel economy (or increase both percentages) to travel as single occupant vehicles (SOVs). Authorities may also implement other requirements to restrict the use of their HOV facilities by low emission and energy-efficient vehicles, such as caps on the number of eligible vehicles or vehicle class or weight restrictions. However, authorities may not implement non-percentage-based standards, such as a miles-per-gallon (MPG) standard, because the statute permits only percentage-based adjustments and an MPG adjustment would conflict with the statute (23 U.S.C. 166(d)(2)(C)).

HOV Facility Management, Operation, Monitoring, and Enforcement - 23 U.S.C. 166(d)

HOV lanes were created to promote carpooling, reduce congestion, emissions, and delay, and generally provide a more reliable trip than one that may occur in the general purpose lanes. In the absence of a performance metric, the functional integrity of HOV and HOT lanes is at risk if the facility fails to provide that performance. Congress has established a performance metric for HOV lanes that allow exempt vehicles to access the HOV facility. The qualifying facility must meet minimum lane efficiency standards or be required to undertake actions that would return the facility to threshold sufficiency, including removing the exempted vehicles that may be causing the degradation in performance.

Annual Report and Certification - 23 U.S.C. 166(d)(1)

A public authority that allows vehicles to use an HOV facility under 23 U.S.C. 166(b)(4) ("HOT vehicles") or (b)(5) ("low emission and energy-efficient vehicles") of subsection (b) must submit a report annually to FHWA showing the HOV facility is not already degraded (or if degraded, that remedial actions are being taken), and that the presence of the vehicles will not cause the facility to become degraded. (Note: this would include any proposed HOV to HOT conversions.) The public authority also must certify to FHWA that the authority will: establish, manage, and support means to report annually on the impacts of said vehicles on the operation of the facility and adjacent highways; establish, manage, and support an enforcement program that ensures the operation of the facility in accordance with the requirements in 23 U.S.C. 166; and limit or discontinue use of the facilities by the subject vehicles if the operation of the facility is degraded. For administrative purposes, FHWA refers to this annual requirement as the public authority’s annual certification.

The certifications may be in the form of official correspondence attesting that the public agency is "duly filing" (or similar), state the public authority has tested the facility against the performance criteria, and certify the facility either meets the criteria or is developing a plan for maintenance of performance as required under section 166(d)(1)(D). If the facility is degraded, the certification should state the date on which the public authority made the degradation determination. The certification should include direct (e.g., attachment) or indirect—by reference prepared reports or other data—supportive evidence (e.g., website with citations) detailing aspects of lanes, lane mileage, facility identification, respective speeds, and performance data conclusions, which serve to represent lane sufficiency or degradation. Data pertaining to enforcement rates, violations, toll structure, revenue, etc., are neither requested nor required for purposes of certification and therefore need not be inclusive. Annual certification shall be delivered to the respective FHWA Division Office, which shall act as repository for the annual reports. The Division Offices will concurrently notify FHWA Headquarters of receipt and of the status of the facility. No annual due date is stipulated in the statutory provisions; therefore, the cover- or title-page date-of-submittal should constitute the anniversary date for the following years' reports. Example: Report for 2015 (Named) Facility Sufficiency is submitted on March 1, 2016. That date prevails thereafter and March 1, 2017, becomes the target date for submitting 2016 sufficiency.

Degraded Facility - 23 U.S.C. 166(d)(2)

A degraded facility is defined as one that does not meet minimum average operating speed of: 45 miles per hour (MPH) for 90 percent of the time over a 180-day monitoring period during morning and evening weekday peak hours (or both), in the case of a HOV facility with a speed limit of 50 MPH or greater; or not more than 10 MPH below the speed limit in the case of a facility with a speed limit of less than 50 MPH. The legislation does not stipulate that public authorities use a specific procedure or methodology in determining if the operational performance of an HOV facility is degraded. The FHWA recognizes that this is because (1) each qualifying HOV facility has different characteristics, and (2) each public authority has different resources to collect and analyze data. Nevertheless, the FHWA Division Office should be satisfied that a suitable methodology is being employed to make the degradation determination.

Nominal occurrences of precipitation, lane enforcement in the HOT lane, or minor (e.g., fender bender) crashes in the adjacent general purpose lanes, are understood to occasionally temporarily slow the facility, if only due to rubbernecking in the latter case. It is impractical to expect that a consecutive 180-day reporting period would be entirely free of all such events. Therefore, even if occurring during the reporting periods, nominal events are part of normal operations and cannot be excluded from data. However, if the public authority can document uniquely impacting events that were of such magnitude and duration that they constitute abnormal impact, then they can be identified to the FHWA Division Office and, upon the Division Office’s agreement, excluded from the performance measure data for that reporting period.

If the operation of an HOV facility that allows HOTs or low emission and energy-efficient vehicles becomes degraded, authorities must take necessary actions, such as limiting or discontinuing the use of HOV facilities by the subject vehicles, or increasing the price paid by non-exempt vehicles for access to HOV lanes. Note: an HOV-only facility (i.e., no SOVs, no low emission and energy-efficient vehicles) is not mandated to meet the performance criteria in section 166(d)(2); however, under section 166(d)(1), other vehicles cannot be allowed in an HOV lane if the HOV lane is already degraded.

Not later than 180 days after a facility is determined to be degraded in accordance with 23 U.S.C. 166(d)(2)(B), the public authority with jurisdiction over the facility shall submit to FHWA for approval a remediation plan that details the actions the public authority will take to make "significant progress" toward bringing the facility into compliance with the minimum average operating speed performance standard through changes to the facility's operation, including: (1) increasing the occupancy requirement for HOV lanes; (2) varying the toll charged to vehicles under 23 U.S.C. 166(b) to reduce demand; (3) discontinuing allowing non-HOV vehicles to use the HOV lanes under section 166(b); or (4) increasing the available capacity of the HOV facility. 23 U.S.C. 166(d)(1)(D). Section 166(d)(1)(E) prescribes that if the public authority fails to bring a facility into compliance, FHWA shall subject the public authority (and possibly State, if the State has oversight responsibility) to appropriate program sanctions under 23 CFR 1.36 until the HOV facility performance is no longer degraded.

No later than 60 days following receipt of the remediation plan describe above, FHWA shall provide the public authority written notice indicating whether the plan has been approved or disapproved based upon a determination of whether plan implementation will make significant progress toward bringing the HOV facility into compliance with the minimum average operating speed performance standard. 23 U.S.C. 166(d)(1)(D).

To avoid the need for potential corrective action, authorities should work closely with the FHWA Division Office before allowing SOV, HOT, or low emission and energy-efficient vehicles to use HOV facilities.

Waiver - 23 U.S.C. 166(d)(1)(F)

Public authorities may request a waiver from sanctions in certain situations; provided the Secretary determines that: (1) the waiver is in the best interest of the travelling public; (2) the public authority is meeting the requirements under section 166(d)(1)(D) to bring the HOV facility into compliance; and (3) the public authority has made a good faith effort to improve the performance of the HOV facility. The Secretary may require, as a condition of waiver, that the public authority undertake additional actions as determined by the Secretary to maximize facility performance, even if such performance remains below the sufficiency threshold.

Summary of Annual Certification, Remediation, or Waiver

A basic timeline for certification is provided here for illustrative purposes only. Specific questions should be directed to the FHWA's Office of Operations HOV program manager.

1. An annual certification is submitted to the FHWA Division Office, which acknowledges receipt of same for documentation purposes. If degradation exists, the Division Office confirms the submittal includes information on the required remedial plan. (Example: A "year 1" report for 2015 submitted on March 1, 2016.) If for some reason the certification is not accepted (e.g., does not meet satisfactions for "establishing, managing, supporting" and reporting vis-á-vis an acceptable oversight program, or is not of sufficient reporting length, etc.), the public authority must correct and resubmit. Assuming the annual certification is duly recognized….
2. The submittal date (and not the Division Office acceptance or recognition of submittal) becomes that facility's defacto annual anniversary for certification.
3. If the facility is determined to be degraded in accordance with 23 U.S.C. 166(d)(2)(B), a remediation plan must be submitted to FHWA for approval. However, even if the 180 days has not elapsed by the certification due date, given that degradation has been identified, and a remediation plan is imminent, the public authority should consider including a remediation plan (e.g., also dated March 1, 2016) when submitting an annual report that identifies degradation.
4. Within 60 days after receiving the remediation plan, FHWA, acting on behalf of the Secretary, under authority delegated by regulation, will provide the public authority with written notice either approving or disapproving the plan.
5. The "year-2" following certification (e.g., "2016" submitted on the now established anniversary date of March 1, 2017) shall contain the 2016 report, but will also serve as de facto comparison to the 2015 report to describe how/if progress has been made. The report should include specific discussion on how successful were the prior years' remediation efforts.
6. Should FHWA find the public authority has failed to bring a facility into compliance, program sanctions will be imposed pursuant to 23 CFR 1.36.
7. The public authority may request a waiver of sanctions and FHWA may grant the waiver upon a determination of qualifying justification. The FHWA may require, as a condition of waiver, prescribed remedial actions.
8. The facility shall be considered to remain not-in-compliance (and subsequent reports must continue to report on progress of remedial efforts) until such time as a subsequent report clears its status, or a waiver is granted.

Consultation of Metropolitan Planning Organization (MPO) - 23 U.S.C. 166(g)

Beginning with the FAST Act in 2015, public authorities that charge tolls on an HOV facility under only 23 U.S.C. 166(b)(4) (HOT vehicles) or (b)(5) (low emission and energy-efficient vehicles) on an Interstate System located within a metropolitan planning area established under 23 U.S.C. 134 must consult with the relevant MPO(s) concerning the placement and amount of tolls on the facility.

Definitions - 23 U.S.C. 166(f)

Section 166(f) contains many of the definitions used in the implementation of HOV facilities, including: "alternative fuel vehicles," "HOV facility," "low emission and energy-efficient vehicles," "over-the-road bus," "public authority," and "public transportation vehicle." Please refer to Appendix A for the text of 23 U.S.C. 166, as amended by the FAST Act.

Applicability of the National Environmental Policy Act (NEPA)

Public authorities with jurisdiction over HOV facilities hold the sole authority to set occupancy requirements and to implement any of the HOV occupancy exceptions under 23 U.S.C. 166(b). There is no discretionary decision or any approval action to be made by FHWA in these areas, except where a State wishes to exclude motorcycles or bicycles from an HOV lane under 23 U.S.C. 166(b)(2)(B). As such, State actions in setting the occupancy requirements or implementing any of the HOV occupancy exceptions, including converting HOV lanes into HOT lanes under 23 U.S.C. 166(b)(4), do not involve a major Federal action that is subject to NEPA. Only when other factors, such as Federal-aid funding or a need to amend previous commitments, give rise to an FHWA approval must FHWA perform a NEPA evaluation. States are encouraged to coordinate with their FHWA Division Office in the early planning phase to determine whether the implementation of any exception, such as the conversion of a HOV lane into a HOT lane, will be part of a Federal-aid project or whether any previous commitments made in prior NEPA decisions or Federal-aid project agreements require any FHWA actions or approvals that would trigger a NEPA review. Note that even if the project is a "pure" section 166 action and may not involve any discretionary Federal action, certain conformity requirements must be met under 40 CFR 93.121 if it is a regionally significant project within an air quality nonattainment or maintenance area. This applies to projects that require adoption or approval by any State, regional, or local agencies that routinely receive title 23, U.S.C., or Federal Transit Administration funds, as defined in 40 CFR 93.101.

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