Federal-Aid Highway Program Guidance on High Occupancy Vehicle (HOV) Lanes
Appendix B §129 23 U.S.C. — Toll roads, bridges, tunnels, and ferries
The following excerpt is Section 129 of Title 23 U.S.C. inclusive of the amendments (deletions, insertions and additions) prescribed by FAST Act Section 1411 "TOLLING".
§129 23 U.S.C. — Toll roads, bridges, tunnels, and ferries
(a) Basic Program.—
(1) Authorization for federal participation.— Subject to the provisions of this section, Federal participation shall be permitted on the same basis and in the same manner as construction of toll-free highways is permitted under this chapter in the—
(A) initial construction of a toll highway, bridge, or tunnel or approach to the highway, bridge, or tunnel;
(B) initial construction of 1 or more lanes or other improvements that increase capacity of a highway, bridge, or tunnel (other than a highway on the Interstate System) and conversion of that highway, bridge, or tunnel to a tolled facility, if the number of toll-free lanes, excluding auxiliary lanes, after the construction is not less than the number of toll-free lanes, excluding auxiliary lanes, before the construction;
(C) initial construction of 1 or more lanes or other improvements that increase the capacity of a highway, bridge, or tunnel on the Interstate System and conversion of that highway, bridge, or tunnel to a tolled facility, if the number of toll-free non-HOV lanes, excluding auxiliary lanes, after such construction is not less than the number of toll-free non-HOV lanes, excluding auxiliary lanes, before such construction;
(D) reconstruction, resurfacing, restoration, rehabilitation, or replacement of a toll highway, bridge, or tunnel or approach to the highway, bridge, or tunnel;
(E) reconstruction or replacement of a toll-free bridge or tunnel and conversion of the bridge or tunnel to a toll facility;
(F) reconstruction of a toll-free Federal-aid highway (other than a highway on the Interstate System) and conversion of the highway to a toll facility;
(G) reconstruction, restoration, or rehabilitation of a highway on the Interstate System if the number of toll-free non-HOV lanes, excluding auxiliary lanes, after reconstruction, restoration, or rehabilitation is not less than the number of toll-free non-HOV lanes, excluding auxiliary lanes, before reconstruction, restoration, or rehabilitation;
(H) conversion of a high occupancy vehicle lane on a highway, bridge, or tunnel to a toll facility; and
(I) preliminary studies to determine the feasibility of a toll facility for which Federal participation is authorized under this paragraph;
(2) Ownership.—Each highway, bridge, tunnel, or approach to the highway, bridge, or tunnel constructed under this subsection shall—
(A) be publicly owned, or
(B) be privately owned if the public authority with jurisdiction over the highway, bridge, tunnel, or approach has entered into a contract with one or more private persons to design, finance, construct, and operate the facility and the public authority will be responsible for complying with all applicable requirements of this title with respect to the facility.
(3) Limitations on use of revenues.—
(A) IN GENERAL.—A public authority with jurisdiction over a toll facility shall ensure that all toll revenues received from operation of the toll facility are used only for—
(i) debt service with respect to the projects on or for which the tolls are authorized, including funding of reasonable reserves and debt service on refinancing;
(ii) a reasonable return on investment of any private person financing the project, as determined by the State or interstate compact of States concerned;
(iii) any costs necessary for the improvement and proper operation and maintenance of the toll facility, including reconstruction, resurfacing, restoration, and rehabilitation;
(iv) if the toll facility is subject to a public-private partnership agreement, payments that the party holding the right to toll revenues owes to the other party under the public-private partnership agreement; and
(v) if the public authority certifies annually that the tolled facility is being adequately maintained, any other purpose for which Federal funds may be obligated by a State under this title.
(B) ANNUAL AUDIT.—
(i) IN GENERAL.—A public authority with jurisdiction over a toll facility shall conduct or have an independent auditor conduct an annual audit of toll facility records to verify adequate maintenance and compliance with subparagraph (A), and report the results of the audits to the Secretary.
(ii) RECORDS.—On reasonable notice, the public authority shall make all records of the public authority pertaining to the toll facility available for audit by the Secretary.
(C) NONCOMPLIANCE.—If the Secretary concludes that a public authority has not complied with the limitations on the use of revenues described in subparagraph (A), the Secretary may require the public authority to discontinue collecting tolls until an agreement with the Secretary is reached to achieve compliance with the limitation on the use of revenues described in subparagraph (A).
(4) Special rule for funding.—
(A) IN GENERAL.—In the case of a toll facility under the jurisdiction of a public authority of a State (other than the State transportation department), on request of the State transportation department and subject to such terms and conditions as the department and public authority may agree, the Secretary, working through the State department of transportation, shall reimburse the public authority for the Federal share of the costs of construction of the project carried out on the toll facility under this subsection in the same manner and to the same extent as the department would be reimbursed if the project was being carried out by the department.
(B) SOURCE.—The reimbursement of funds under this paragraph shall be from sums apportioned to the State under this chapter and available for obligations on projects on the Federal-aid highways in the State on which the project is being carried out.
(5) Limitation on federal share.—The Federal share payable for a project described in paragraph (1) shall be a percentage determined by the State but not to exceed 80 percent.
(6) Modifications.—If a public authority (including a State transportation department) with jurisdiction over a toll facility subject to an agreement under this section or section 119(e), as in effect on the day before the effective date of title I of the Intermodal Surface Transportation Efficiency Act of 1991(105 Stat. 1915), requests modification of the agreement, the Secretary shall modify the agreement to allow the continuation of tolls in accordance with paragraph (3) without repayment of Federal funds.
(A) In general.—
(i) LOANS.—Using amounts made available under this title, a State may loan to a public or private entity constructing or proposing to construct under this section a toll facility or non-toll facility with a dedicated revenue source an amount equal to all or part of the Federal share of the cost of the project if the project has a revenue source specifically dedicated to the project.
(ii) DEDICATED REVENUE SOURCES.—Dedicated revenue sources for non-toll facilities include excise taxes, sales taxes, motor vehicle use fees, tax on real property, tax increment financing, and such other dedicated revenue sources as the Secretary determines appropriate.
(B) Compliance with federal laws.—As a condition of receiving a loan under this paragraph, the public or private entity that receives the loan shall ensure that the project will be carried out in accordance with this title and any other applicable Federal law, including any applicable provision of a Federal environmental law.
(C) Subordination of debt.—The amount of any loan received for a project under this paragraph may be subordinated to any other debt financing for the project.
(D) Obligation of funds loaned.—Funds loaned under this paragraph may only be obligated for projects under this paragraph.
(E) Repayment.—The repayment of a loan made under this paragraph shall commence not later than 5 years after date on which the facility that is the subject of the loan is open to traffic.
(F) Term of loan.—The term of a loan made under this paragraph shall not exceed 30 years from the date on which the loan funds are obligated.
(G) Interest.—A loan made under this paragraph shall bear interest at or below market interest rates, as determined by the State, to make the project that is the subject of the loan feasible.
(H) Reuse of funds.—Amounts repaid to a State from a loan made under this paragraph may be obligated—
(i) for any purpose for which the loan funds were available under this title; and
(ii) for the purchase of insurance or for use as a capital reserve for other forms of credit enhancement for project debt in order to improve credit market access or to lower interest rates for projects eligible for assistance under this title.
(I) Guidelines.—The Secretary shall establish procedures and guidelines for making loans under this paragraph.
(8) STATE LAW PERMITTING TOLLING.—If a State does not have a highway, bridge, or tunnel toll facility as of the date of enactment of the MAP–21, before commencing any activity authorized under this section, the State shall have in effect a law that permits tolling on a highway, bridge, or tunnel.
(9) EQUAL ACCESS FOR OVER-THE-ROAD BUSES—An over-the-road bus that serves the public shall be provided access to a toll facility under the same rates, terms, and conditions as public transportation buses.
(10) DEFINITIONS.—In this subsection, the following definitions apply:
(A) HIGH OCCUPANCY VEHICLE; HOV.—The term ‘high occupancy vehicle' or 'HOV' means a vehicle with not fewer than 2 occupants.
(B) INITIAL CONSTRUCTION.—
(i) IN GENERAL.—The term 'initial construction' means the construction of a highway, bridge, tunnel, or other facility at any time before it is open to traffic.
(ii) EXCLUSIONS.—The term 'initial construction' does not include any improvement to a highway, bridge, tunnel, or other facility after it is open to traffic.
(C) OVER-THE-ROAD BUS—The term over-the-road bus has the meaning given the term in section 301 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181).
(D) PUBLIC AUTHORITY.—The term 'public authority' means a State, interstate compact of States, or public entity designated by a State.
(E) TOLL FACILITY.—The term 'toll facility' means a toll highway, bridge, or tunnel or approach to the highway, bridge, or tunnel constructed under this subsection.
(b) Notwithstanding the provisions of section 301 of this title, the Secretary may permit Federal participation under this title in the construction of a project constituting an approach to a ferry, whether toll or free, the route of which is a public road and has not been designated as a route on the Interstate System. Such ferry may be either publicly or privately owned and operated, but the operating authority and the amount of fares charged for passage shall be under the control of a State agency or official, and all revenues derived from publicly owned or operated ferries shall be applied to payment of the cost of construction or acquisition thereof, including debt service, and to actual and necessary costs of operation, maintenance, repair, and replacement.
(c) Notwithstanding section 301 of this title, the Secretary may permit Federal participation under this title in the construction of ferry boats and ferry terminal facilities, whether toll or free, subject to the following conditions:
(1) It is not feasible to build a bridge, tunnel, combination thereof, or other normal highway structure in lieu of the use of such ferry.
(2) The operation of the ferry shall be on a route classified as a public road within the State and which has not been designated as a route on the Interstate System. Projects under this subsection may be eligible for both ferry boats carrying cars and passengers and ferry boats carrying passengers only.
(3) Such ferry boat or ferry terminal facility shall be publicly owned or operated or majority publicly owned if the Secretary determines with respect to a majority publicly owned ferry or ferry terminal facility that such ferry boat or ferry terminal facility provides substantial public benefits.
(4) The operating authority and the amount of fares charged for passage on such ferry shall be under the control of the State or other public entity, and all revenues derived therefrom shall be applied to actual and necessary costs of operation, maintenance, and 1 repair, debt service, negotiated management fees, and, in the case of a privately operated toll ferry, for a reasonable rate of return.
(5) Such ferry may be operated only within the State (including the islands which comprise the State of Hawaii and the islands which comprise any territory of the United States) or between adjoining States or between a point in a State and a point in the Dominion of Canada. Except with respect to operations between the islands which comprise the State of Hawaii, operations between the islands which comprise any territory of the United States, operations between a point in a State and a point in the Dominion of Canada, and operations between any two points in Alaska and between Alaska and Washington, including stops at appropriate points in the Dominion of Canada, no part of such ferry operation shall be in any foreign or international waters.
(6) No such ferry shall be sold, leased, or otherwise disposed of without the approval of the Secretary. The Federal share of any proceeds from such a disposition shall be credited to the unprogramed balance of Federal-aid highway funds of the same class last apportioned to such State. Any amount so credited shall be in addition to all other funds then apportioned to such State and available for expenditure in accordance with the provisions of this title.Previous | Table of Contents