Fixing America's Surface Transportation (FAST) Act; Equal Access for Over-the-Road Buses Guidance |
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Brandye L. Hendrickson
Federal Highway Administration
22 February 2018
[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]
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