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

Walter C. Waidelich, Jr.
Federal Highway Administration
28 April 2017

[Federal Register Volume 82, Number 81 (Friday, April 28, 2017)]
[Notices]
[Pages 19784-19785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08587]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2017-0006]


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

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

ACTION: Notice; request for comment.

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SUMMARY: The FHWA invites interested parties to review and comment on 
definitions and applicable facilities related to requirements contained 
in Section 1411(a) and (b) of the Fixing America's Surface 
Transportation (FAST) Act regarding the treatment of over-the-road 
buses (OTRBs). In addition, FHWA invites interested parties to review 
and comment on a listing of covered Section 129 Federal-aid toll 
facilities in the United States.

DATES: Comments must be received by May 30, 2017.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit them by only one of the following means:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: U.S. Department of Transportation, Dockets 
Management Facility, Room W12-140, 1200 New Jersey Ave. SE., 
Washington, DC 20590- 0001.
     Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Ave. SE., between 9 a.m. 5p.m., Monday through Friday, 
except Federal holidays. The telephone number is (202) 366-9329.
    All comments must include the docket number DOT-FHWA-2017-0006 at 
the beginning of the submission.
    Electronic Access: This document 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 Web 
site. 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 Web site at: 
http://www.archives.gov/federalregister and the Government Publishing 
Office's Web site 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., Room 201, Lansing, MI 48933, (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. Applicable Definitions for Implementing Section 1411 of the FAST 
Act
C. Covered Facilities Subject to OTRB Equal Access
D. Covered Section 129 Facilities List
E. Request for Comment

A. Background

    The FAST Act includes a number of provisions that modify Federal 
requirements related to high-occupancy vehicle (HOV) facilities and the 
tolling of highways. Sections 1411(a) and (b) of the FAST Act contained 
new requirements regarding the treatment of over-the-road buses (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 access to toll 
or HOV facilities for OTRBs.
    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 provided in 23 U.S.C. 
166(b), HOV authorities may allow all public transportation vehicles to 
use HOV lanes, whether they meet the minimum occupancy requirements, as 
long as 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 also 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.
    In preparing guidance to assist in the implementation of Section 
1411 of the FAST Act, FHWA considered how to define key terms in 
Section 1411 as well as which facilities are governed by the new 
requirements. The FHWA is seeking comment on implementation of these 
terms as they relate to FAST Act Section 1411 amendments to 23 U.S.C. 
129 and 166.

B. 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 intends to use definitions where they 
exist in relevant statutes and regulations. Where FHWA found no 
existing definition, such as for the term ``public transportation 
bus,'' FHWA developed a definition based on its interpretation of 
Congress's intent. The definitions for the key terms, are:
    ``Over-the-road bus'' is defined as a bus characterized by an 
elevated passenger deck located over a baggage compartment. Source: As 
amended by FAST Act Section 1411, 23 U.S.C. 129(a)(10)(C) and 23 U.S.C. 
166(f)(4) define this term, giving it the same meaning as in Section 
301 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181).
    ``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. Source: The FHWA developed this 
definition by drawing upon definitions of similar or related terms. The 
FHWA incorporated the definition of ``public transportation vehicle'' 
in 23 U.S.C. 166(f)(6), and the definition of ``bus'' in 49 CFR 571.3.

[[Page 19785]]

    ``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. Source: This term is defined in 23 U.S.C. 166(f)(6).
    ``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. Source: This term has a 
similar meaning as the term ``designated public transportation'' in 
Section 221 of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12141).
    ``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). Source: This term has the same meaning as the term is given in 
23 U.S.C. 129(a)(10)(E).

C. Covered Facilities Subject to OTRB Equal Access

Section 129 Facilities

    Section 1411(a) of the FAST Act amends 23 U.S.C. 129 to provide 
that, ``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.'' 23 U.S.C. 129(a)(9). A toll facility 
is defined in 23 U.S.C. 129(a)(10)(E) (as amended by the FAST Act) as: 
``a toll highway, bridge, or tunnel or approach to the highway, bridge, 
or tunnel constructed under [section 129(a)].''
    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 statutory 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).

Section 166 Facilities

    For HOV facilities under 23 U.S.C. 166, Section 1411(b) of the FAST 
Act added Section 166(b)(3)(C), which requires any authority that 
allows public transportation vehicles to use an HOV facility to provide 
equal access to the facility under the same rates, terms, and 
conditions for all public transportation vehicles and OTRBs serving the 
public. The FAST Act also added Section 166(b)(4)(C)(iii), which 
provides that if an authority operates HOT lanes that allow vehicles 
not otherwise exempt under 23 U.S.C. 166(b) to pay a toll to use the 
facility, the authority must ensure that OTRBs serving the public are 
provided access to the facility under the same rates, terms, and 
conditions as public transportation buses.
    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.

D. Covered Section 129 Facilities List

    The Section 129 Covered Facilities list can be found on the docket 
for this Federal Register Notice. Federal-aid toll facilities that were 
constructed under other Federal tolling authorities and not subject to 
Section 1411 of the FAST Act are also included in the docket list of 
covered facilities 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 FHWA invites comment on the accuracy and completeness of the 
list of facilities subject to OTRB equal access.

E. Request for Comment

    The FHWA is seeking public comment on the following specific 
sections of this Federal Register Notice:
    (1) Applicable definitions for implementing Section 1411 of the 
FAST Act,
    (2) Covered facilities subject to OTRB equal access, and
    (3) OTRB Section 129 Covered Facilities list.
    The OTRB Section 129 Covered Facilities list can be found on the 
docket for this Federal Register Notice.
    Commenters are encouraged to address any or all of the areas listed 
above. Commenters are also encouraged to provide specific information 
on toll facilities subject to OTRB requirements that are not included 
on the Section 129 Covered Facilities-OTRB list. Commenters may also 
describe why they believe certain facilities should be included in the 
Section 129 Covered Facilities-OTRB list. This description should 
include such information as the facility name, location, route 
designation, and owner/operator.
    Commenters are also encouraged to focus on matters within the 
control of FHWA. (Matters not within the control of FHWA include such 
items as HOV occupancy requirements at specific facilities, setting of 
toll rates, or Federal Transit Administration laws.) The FHWA will 
consider public comment before adopting its final guidance on OTRBs.

    Issued on: April 24, 2017.
Walter C. Waidelich, Jr.,
Acting Deputy Administrator, Federal Highway Administration.
[FR Doc. 2017-08587 Filed 4-27-17; 8:45 am]
 BILLING CODE 4910-22-P