[Federal Register Volume 72, Number 7 (Thursday, January 11, 2007)]
[Notices]
[Pages 1366-1372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-263]
[[Page 1366]]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No: FTA-2006-25750]
Final Policy Statement on When High-Occupancy Vehicle (HOV) Lanes
Converted to High-Occupancy/Toll (HOT) Lanes Shall Be Classified as
Fixed Guideway Miles for FTA's Funding Formulas and When HOT Lanes
Shall Not Be Classified as Fixed Guideway Miles for FTA's Funding
Formulas
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Final policy statement.
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SUMMARY: This notice supersedes the notice published in the Federal
Register by FTA on December 27, 2006, at 71 FR 77862. This notice
corrects certain typographical errors that appeared in the prior
notice, makes non-substantive revisions to the prior notice and re-
orders the sections of the prior notice.
This final policy statement describes the terms and conditions on
which the Federal Transit Administration (FTA) will classify High-
Occupancy Vehicle (HOV) lanes that are converted to High-Occupancy/Toll
(HOT) lanes as ``fixed guideway miles'' for purposes of the transit
funding formulas administered by FTA. This final policy statement also
describes when FTA will not classify HOT lanes as fixed guideway miles
for purposes of the transit funding formulas administered by FTA.
DATES: Effective Date: The effective date of this final policy
statement is January 11, 2007.
ADDRESSES: Availability of the Final Policy Statement and Comments:
Copies of this final policy statement and comments and material
received from the public, as well as any documents indicated in this
notice as being available in the docket, are part of docket number FTA-
2006-25750. For access to the DOT docket, please go to http://dms.dot.gov at any time or to the Docket Management System facility,
U.S. Department of Transportation, Room PL-401 on the plaza level of
the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: David B. Horner, Esq., Chief Counsel,
Office of Chief Counsel, Federal Transit Administration, 400 Seventh
Street, SW., Washington, DC 20590-0001, (202) 366-4040,
[email protected]; or Robert J. Tuccillo, Associate Administrator,
Office of Budget & Policy, Federal Transit Administration, 400 Seventh
Street, SW., Washington, DC 20590-0001, (202) 366-4050,
[email protected]. Office hours are from 8:30 a.m. to 5 p.m.,
Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: This document is organized in the following
sections:
I. Background
II. Final Policy Statement on HOV-to-HOT Conversion
III. Response to Comments Received
I. Background
On September 7, 2006, the Federal Transit Administration (FTA)
published in the Federal Register (at 71 FR 52849), a proposed policy
on (i) when High-Occupancy Vehicle (HOV) lanes converted to High-
Occupancy/Toll (HOT) lanes shall be classified as ``fixed guideway
miles'' for the purpose of FTA's funding formulas and (ii) when HOT
lanes shall not be classified as fixed guideway miles for the purpose
of FTA's funding formulas. The proposed policy reads as follows:
FTA would classify HOT lanes as ``fixed guideway miles'' for
purposes of the funding formulas administered under 49 U.S.C. 5307
and 49 U.S.C. 5309, so long as each of the following conditions is
satisfied: (i) The HOT lanes were previously HOV lanes reported in
the National Transit Database as fixed guideway miles for purposes
of the funding formulas administered by FTA under 49 U.S.C. 5307 and
49 U.S.C. 5309; (ii) The HOT lanes are continuously monitored and
continue to meet performance standards that preserve free flow
traffic conditions as specified in 23 U.S.C. 166(d); and (iii)
Program income from the HOT lane facility, including all toll
revenue, is used solely for ``permissible uses.''
The proposed policy also addressed whether FTA should require certain
transit and tolling policies with respect to HOT lanes classified as
fixed guideway miles, and whether FTA should require the return of
funds made available under Full Funding Grant Agreements for the
construction of HOV lanes that have later been converted to HOT lanes.
II. Final Policy Statement on HOV-to-HOT Conversion
This final policy statement explains when FTA shall classify HOV
lanes converted to HOT lanes as ``fixed guideway miles'' for the
purpose of FTA's funding formulas and when FTA shall not classify HOT
lanes as fixed guideway miles for the purpose of its funding formulas.
Overview
Since the early 1980s, transportation officials have sought to
manage traffic congestion and increase vehicle occupancy by means of
High-Occupancy Vehicle (HOV) lanes--highway lanes reserved for the
exclusive use of car pools and transit vehicles. Today, there are over
130 freeway HOV facilities in metropolitan areas in the US,\1\ of which
approximately ten have received funding through FTA's Major Capital
Investment program and approximately eighty are counted as fixed
guideway miles for purposes of FTA's formula grant programs.\2\ Since
1990, however, HOV mode share in thirty-six of the forty largest
metropolitan areas has steadily declined,\3\ while both excess capacity
on HOV lanes and congestion on general purpose lanes have increased.\4\
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\1\ Office of Operations, Federal Highway Administration, U.S.
Department of Transportation.
\2\ National Transit Database.
\3\ Journey to Work Trends in the United States and its Major
Metropolitan Areas 1960-2000, Publication No. FHWA-EP-03-058
Prepared for: U.S. Department of Transportation, Federal Highway
Administration, Office of Planning, Prepared by: Nancy McGuckin,
Consultant, Nanda Srinivasan, Cambridge Systematics, Inc.
\4\ Office of Operations, Federal Highway Administration, U.S.
Department of Transportation. Demand for highway travel by Americans
continues to grow as population increases, particularly in
metropolitan areas. Construction of new highway capacity to
accommodate this growth in travel has not kept pace. Between 1980
and 1999, route miles of highways increased 1.5 percent while
vehicle miles of travel increased seventy-six percent. The Texas
Transportation Institute estimates that, in 2000, the seventy-five
largest metropolitan areas experienced 3.6 billion vehicle-hours of
delay, resulting in 5.7 billion gallons in wasted fuel and $67.5
billion in lost productivity. And traffic volumes are projected to
continue to grow. The volume of freight movement alone is forecast
to nearly double by 2020. Congestion is largely thought of as a big
city problem, but delays are becoming increasingly common in small
cities and some rural areas as well.
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An increasing number of metropolitan areas are considering new
demand management strategies as alternatives to HOV lanes. One emerging
alternative is the variably-priced High-Occupancy/Toll (HOT) lane. HOT
lanes combine HOV and pricing strategies by allowing Single-Occupant
Vehicles (SOVs) to access HOV lanes by paying a toll. The lanes are
``managed'' through pricing to maintain free flow conditions even
during the height of rush hours.
HOT lanes provide multiple benefits to metropolitan areas that are
experiencing severe and worsening congestion and significant
transportation funding shortages. First, variably-priced HOT lanes
expand mobility options in congested urban areas by providing an
opportunity for reliable travel times for users prepared to pay a
premium for this service. HOT lanes also improve the efficiency of HOV
facilities by allowing toll-paying
[[Page 1367]]
SOVs to utilize excess lane capacity on HOVs. In addition, HOT lanes
generate new revenue which can be used to pay for transportation
improvements, including enhanced transit service.
In August of 2005, recognizing the advantages of HOT lanes, the
U.S. Congress enacted Section 112 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU),
codified at 23 U.S.C. 166, to authorize States to permit use of HOV
lanes by SOVs, so long as the performance of the HOV lanes is
continuously monitored and continues to meet specified performance
standards. The U.S. Department of Transportation (Department) has
strongly endorsed the conversion of HOV lanes to variably-priced HOT
lanes, most recently in its Initiative to Reduce Congestion on the
Nation's Transportation Network. It is the Department's policy to
encourage jurisdictions to consider ``HOV-to-HOT'' conversion as a
means of congestion relief and possible revenue enhancement.
The ability of HOT lanes to introduce additional traffic to
existing HOV facilities, while using pricing and other management
techniques to control the number of additional motorists, maintain high
service levels and provide new revenue, make HOT lanes an effective
means of reducing congestion and improving mobility. For this reason,
and given the new authority enacted by Congress to promote ``HOV-to-
HOT'' conversions, many States, transportation agencies and
metropolitan areas are seriously considering applying variable pricing
to both new and existing roadways. For example, the current long-range
transportation plan for the Washington, DC, metropolitan area includes
four new HOT lanes along fifteen miles of the Capital Beltway in
Virginia, and six new variably-priced lanes along eighteen miles on the
Inter-County Connector in Montgomery and Prince George's Counties in
Maryland.\5\ Virginia is also exploring the possibility of converting
existing HOV lanes along the I-95/395 corridor into HOT lanes.\6\
Maryland is considering express toll lanes along I-495, I-95 and I-270,
as well as along other facilities.\7\ Similarly, in San Francisco, the
Metropolitan Transportation Commission's Transportation 2030 Plan
advocates development of a HOT network that would convert that region's
existing HOV lanes to HOT lanes; \8\ Houston's 2025 Regional
Transportation Plan includes plans to implement peak period pricing
within the managed HOT lanes of the major freeway corridors in the
region; \9\ and the Miami-Dade, Florida 2030 Transportation Plan
includes conversion of existing HOV lanes to reversible HOV/HOT lanes
to provide additional capacity to I-95 in Miami-Dade County.\10\ Other
jurisdictions are exploring the potential for HOT lanes with grants
provided by the Department's Value Pricing Pilot Program.\11\ These
include the Port Authority of New York/New Jersey; San Antonio, Texas;
Seattle, Washington; Atlanta, Georgia; and Portland, Oregon.\12\
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\5\ Letter to U.S. Department of Transportation, August 28,
2006, from National Capital Region Transportation Planning Board.
\6\ Id.
\7\ Id.
\8\ A Vision for the Future Transportation 2030, February 2005,
Chapter 1, Page 6.
\9\ 2025 Regional Transportation Plan Houston-Galveston Area,
June 2005, Page 31.
\10\ Miami-Dade Transportation Plan (to the Year 2030) December
2004, FINAL DRAFT, Page 24.
\11\ Federal Highway Administration, U.S. Department of
Transportation. The Department's Value Pricing Pilot Program (VPPP),
initially authorized by the Intermodal Surface Transportation
Efficiency Act as the Congestion Pricing Pilot Program and continued
as the VPPP under SAFETEA-LU, encourages implementation and
evaluation of value pricing pilot projects, offering flexibility to
encompass a variety of innovative applications including areawide
pricing, pricing of multiple or single facilities or corridors,
single lane pricing, and implementation of other market-based
strategies.
\12\ Federal Highway Administration, U.S. Department of
Transportation.
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While an increasing number of metropolitan planning organizations
and State departments of transportation are studying the HOT lane
concept as a strategy to improve mobility, six HOT lane facilities
currently operate in the United States: State Route 91 (SR 91) Express
Lanes in Orange County, California; the I-15 FasTrak in San Diego,
California; the Katy Freeway QuickRide and the Northwest Freeway (US
290) in Harris County, Texas; I-394 in Minneapolis and St. Paul,
Minnesota; and I-25 in Denver, Colorado.
Prior FTA Policy
Since 2002, FTA's policy has been to continue to classify the lanes
of an HOV facility converted to HOT lanes as fixed guideway miles for
funding formula purposes on the condition that the facility meets two
requirements: (i) The HOT facility manages SOV use so that it does not
impede the free-flow and high speed of transit and high-occupancy
vehicles and (ii) toll revenues collected on the facility will be used
for mass transit purposes.\13\ FTA has considered requiring as an
additional condition for eligibility that the lowest toll payable by
SOVs on a HOT facility be not less than the fare charged for transit
services on the HOT facility.
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\13\ In a Letter to U.S. Representative Randall Cunningham,
dated June 10, 2002, concerning the I-15 FasTrak facility in San
Diego, FTA stated: ``* * * FTA will recognize, for formula
allocation purposes, exclusive fixed guideway transit facilities
that permit toll-paying SOVs on an incidental basis (often called
high occupancy/toll (HOT) lanes) under the following conditions: the
facility must be able to control SOV use so that it does not impede
the free flow and high speed of transit and HOV vehicles, and the
toll revenues collected must be used for mass transit purposes.''
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Final FTA Policy
(a) Purpose of Final Policy. This final policy statement will help
ensure that Federal transit funding for congested urban areas is not
decreased when existing HOV facilities are converted to variably-priced
HOT lanes in an effort by localities to reduce congestion, improve air
quality, and maximize throughput using excess HOV lane capacity. The
policy will also promote a uniform approach by the Department's
operating agencies concerning HOV-to-HOT conversions. In particular,
FTA's policy will be coordinated with the statutes enacted by the U.S.
Congress under Section 112 of SAFETEA-LU applicable to the Federal
Highway Administration that are intended to simplify conversion of HOV
lanes to HOT lanes. The policy will also support the Department's
objective of encouraging HOV-to-HOT conversions.
(b) Final Policy. FTA shall classify HOT lanes as fixed guideway
miles for purposes of the funding formulas administered under 49 U.S.C.
5307 and 49 U.S.C. 5309, so long as each of the following conditions is
satisfied:
(i) The HOT lanes were previously \14\ HOV lanes reported in the
National Transit Database as fixed guideway miles for purposes of the
funding formulas administered by FTA under 49
[[Page 1368]]
U.S.C. 5307(b) and 49 U.S.C. 5309(a)(E).\15\ Facilities that were not
eligible HOV lanes prior to being converted to HOT lanes will remain
ineligible for inclusion as fixed guideway miles in FTA's funding
formulas. Therefore, neither non-HOV facilities converted directly to
HOT facilities nor facilities constructed as HOT lanes will be eligible
for classification as fixed guideway miles.\16\
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\14\ With respect to whether HOT lanes were previously HOV lanes
reported in the National Transit Database (``NTD'') as ``fixed
guideway miles,'' HOV facilities classified as ``fixed guideway
miles'' in the NTD on or before date of the publication of this
final policy statement shall satisfy this requirement. With respect
to HOV lanes that have not been classified as ``fixed guideway
miles'' in the NTD on or before the date of publication of this
final policy statement, such HOV lanes may not be converted to HOT
lanes and maintain their classification as ``fixed guideway miles''
unless: (i) The HOV lanes have reported to the NTD as ``fixed
guideway miles'' for three years prior to their conversion to HOT
lanes, (ii) users of public transportation have accounted for at
least 50% of the passenger miles traveled on the HOV lanes in their
last twelve months of service (or once the HOV lanes are converted
to HOT lanes, users of public transportation are reasonably expected
to account for at least 50% of the passenger miles traveled on the
HOT lanes in their first twelve months of service), or (iii) in his
or her discretion, the Administrator so approves.
\15\ FTA apportions amounts made available for fixed guideway
modernization under 49 U.S.C. 5309 pursuant to fixed guideway
factors detailed at 49 U.S.C. 5337. One of these fixed guideway
factors, located at 49 U.S.C. 5337(a)(5)(B), apportions a percentage
of the available fixed guideway modernization funds to `fixed
guideway systems placed in revenue service at least seven years
before the fiscal year in which amounts are made available.' For
purposes of 49 U.S.C. 5337(a)(5)(B), (i) no HOV facility that has
been in revenue service at least seven years shall forfeit its
eligibility for fixed guideway modernization funds because it is
converted to a HOT lane facility in accordance with this final
policy statement; and (ii) no HOV facility that has been in revenue
service for less than seven years shall forfeit the years it has
accrued under 49 U.S.C. 5337(a)(5)(B) because it is converted to a
HOT lane facility and for so long as the HOT lane facility maintains
its ``fixed guideway'' classification in accordance with this final
policy statement, it shall continue to accrue years thereunder.
\16\ FTA recognizes one exception to this statement--bus-only
shoulders. Accordingly, FTA shall classify HOT lane facilities
converted from bus-only shoulders as fixed guideway miles, so long
as such HOT lanes satisfy the conditions set forth in sections
II(b)(ii) and (iii) of this final policy statement and were bus-only
shoulders previously reported in the National Transit Database as
fixed guideway miles for purposes of the funding formulas
administered by FTA under 49 U.S.C. 5307 and 5309.
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(ii) The HOT lanes are continuously monitored and continue to meet
performance standards that preserve free flow traffic conditions as
specified in 23 U.S.C. 166(d). 23 U.S.C. 166(d) provides operational
performance standards for an HOV facility converted to a HOT facility.
It also requires that the performance of the facility be continuously
monitored and that it continue to meet specified performance standards.
Due to original project commitments, HOV facilities constructed using
capital funds available under 49 U.S.C. 5309(d) or (e) may be required,
when converted to HOT lanes, to achieve a higher performance standard
than required under 23 U.S.C. 166(d). Standards for operational
performance and determining degradation of operational performance for
facilities constructed with funds from FTA's New Starts program shall
be determined by FTA on a case-by-case basis. FTA will require real-
time monitoring of traffic flows to ensure on-going compliance with
operational performance standards.
(iii) Program income from the HOT lane facility, including all toll
revenue, is used solely for ``permissible uses.'' ``Permissible uses''
means any of the following uses with respect to any HOT lane facility,
whether operated by a public or private entity: (a) Debt service, (b) a
reasonable return on investment of any private financing, (c) the costs
necessary for the proper operation and maintenance of such
facility,\17\ and (d) if the operating entity annually certifies that
the facility is being adequately operated and maintained (including
that the permissible uses described in (a), (b) and (c) above, if
applicable, are being duly paid), any other purpose relating to a
project carried out under Title 49 U.S.C. 5301 et seq. In cases where
the HOT lane facility has received (or receives) funding from FTA and
another Federal agency, such that use of the facility's program income
is governed by more than one Federal program, FTA's restrictions
concerning permissible use shall not apply to more than transit's
available share \18\ of the facility's program income. FTA shall not
require recipients to assign priority in payment to any permissible
use.
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\17\ The costs necessary for the proper operation and
maintenance of a HOT lane facility may include reconstruction,
rehabilitation, and the costs associated with operating transit
service on the facility.
\18\ Transit's allocable share of the facility's program income
shall be an amount equal to the facility's total program income, for
any period, multiplied by a ratio, (a) The numerator of which shall
be the cumulative amount of funds contributed to the facility
through a program established by transit law, and (b) the
denominator of which shall be the cumulative amount of all Federal,
State and local capital funds contributed to the facility, in each
case at the time transit's allocable share is calculated. For
purposes of 49 CFR part 18.25, (i) amounts other than transit's
allocable share shall not constitute program income and (ii) any
expenditure of transit's allocable share that is not deducted from
outlays made under transit law shall be deemed an ``alternative''
under 49 U.S.C. 18.25(g) and deemed by FTA a term of the grant
agreement.
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(c) Transit Fares and Tolls on HOT Lane Facilities. FTA shall not
condition the classification of HOT lanes converted from HOV lanes as
fixed guideway miles, or condition any approval or waiver under a Full
Funding Grant Agreement, on a grantee's adopting transit fare policies
or a tolling authority's adopting of tolling policies concerning,
respectively, the price of transit services on the HOT lane facility
and the tolls payable by SOVs. Instead, FTA shall permit grantees and
tolling authorities to develop their own fare structures for transit
services and tolls, respectively, on HOT lane facilities. Transit fares
shall remain subject to 49 U.S.C. 332 (Nondiscrimination) and 49 U.S.C.
5307 (Urbanized area formula grants), however.
(d) No Return of Funds under Full Funding Grant Agreements. In the
event that an HOV facility is converted to a HOT facility and the HOV
facility has received funds through FTA's New Starts program, FTA shall
not require the grantee to return such funds so long as the facility
complies with the conditions set forth in this final policy statement
and the original grant agreement or Full Funding Grant Agreement, as
applicable.
III. Response to Comments Received
Thirty-four parties submitted comments in response to FTA's
proposed policy, published in the Federal Register on September 7,
2006, at 71 FR 52849 (the proposed policy). This section responds to
those comments by topic in the following order: (a) Policy Statement
Generally; (b) HOT Lanes Were Previously HOV Lanes Reported in the
National Transit Database as ``Fixed Guideway Miles''; (c) Monitoring
and Performance Standards; (d) Program Income and Toll Revenues; (e)
Transit Fares and Tolls; (f) Return of Funds under Full Funding Grant
Agreements; and (g) Miscellaneous Comments.
(a) Policy Statement Generally. The purpose of the proposed policy
was to ensure that Federal transit funding for congested urban areas
would not be decreased if HOV facilities were converted to variably-
priced HOT lanes. The proposed policy also sought to achieve a uniform
approach among the operating agencies of the Department concerning HOV-
to-HOT conversions, and supported the Department's policy of
encouraging HOV-to-HOT conversions. Eight commenters agreed generally
with FTA's proposed policy. Six parties submitted general comments.
Four commenters asked FTA to defer its final policy determination until
the impacts become more apparent. One commenter articulated four policy
principles that discuss ways to integrate transit into toll roads and
HOT lanes.\19\ Another commenter stated that one of FTA's top
priorities in developing the policy should be to foster an increase in
alternative transportation ridership--whether that alternative is
carpool, vanpool, transit, or other shared-mode--and suggested four
ways the policy
[[Page 1369]]
statement could better support this end.\20\
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\19\ The commenter's suggested policy principles are as follows:
(1) Metropolitan areas and states should have greater latitude to
use roadway tolling; (2) Tolling should be a supplement to and not a
substitution for existing transportation funding; (3) Local sponsors
should have the discretion to fund public transportation with toll
revenues; and (4) Tolling should be permitted as a long-term
strategy.
\20\ The commenter's four suggestions on how FTA's policy
statement could foster alternative transportation ridership are as
follows: (1) The policy statement should support transportation
demand management and HOV usage; (2) Greater emphasis on enforcement
should be considered; (3) FTA should tie fixed guideway
qualification to integrity of the lane; and (4) FTA should emphasize
language at 23 U.S.C. 166(c)(3), which section requests that States,
in the use of toll revenues, give priority consideration to projects
for developing alternatives to single occupancy vehicle travel and
projects for improving highway safety.
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FTA Response: The commenters that asked FTA to defer its final
policy determination until the impacts are more apparent seemed to
misunderstand the scope of FTA's proposed policy. FTA's HOV-to-HOT
policy will not result in all HOT lane facilities being classified as
fixed guideway miles for purposes of FTA's funding formulas. Rather,
only those HOT lane facilities converted from HOV lanes that have been
previously classified as fixed guideway miles shall qualify for
continued classification as such, subject to the conditions set forth
in the final policy statement in section II of this notice.
In response to the four policy principles summarized at footnote
(19), FTA reminds the commenter that, without this final policy
statement, transit formula funding for congested urban areas would
decrease if existing HOV facilities were converted to variably-priced
HOT lanes. For this reason, FTA believes that this policy statement:
(1) Gives states greater latitude to use tolling without negatively
impacting available transit resources; (2) enhances existing
transportation funding through the collection of toll revenues; (3)
grants project sponsors discretion to use toll revenues for any
``permissible use'' (as defined in section II of this notice); and (4)
encourages variably-priced HOT lanes as a long-term strategy,
consistent with the policy of the Department.
In response to the commenter that stated FTA should consider
fostering an increase in alternative transportation ridership as one of
its top priorities in developing this guidance, FTA reemphasizes its
primary purpose in drafting this guidance--to ensure that Federal
transit funding for congested urban areas is not decreased when exiting
HOV facilities are converted to HOT lanes. FTA responds to the
commenter's four suggestions summarized at footnote (20) in turn. With
respect to the first suggestion, the final policy statement supports
HOV usage, but recognizes that many HOV facilities are underutilized;
the ability of HOT lanes to introduce additional traffic to existing
HOV facilities, while using pricing and other demand management
techniques to control the number of additional motorists, maintain high
service levels and provide new revenue, make HOT lanes an effective
means of reducing congestion and improving mobility. With respect to
the second and third suggestions, FTA will rely on the management,
operation, monitoring and enforcement provisions of 23 U.S.C. 166(d).
With respect to the fourth suggestion, the final policy statement does
not modify language at 23 U.S.C. 166(c)(3).
Accordingly, FTA has adopted as final the general provisions of its
proposed policy.
(b) HOT Lanes Were Previously HOV Lanes Reported in the National
Transit Database as Fixed Guideway Miles. In its notice describing the
proposed policy, FTA requested comments on its proposal to classify HOT
lanes as fixed guideway miles for purposes of the funding formulas
administered under 49 U.S.C. 5307 and 49 U.S.C. 5309, so long as each
of three conditions is satisfied. The first condition is that the HOT
lanes were previously HOV lanes reported in the National Transit
Database as fixed guideway miles for purposes of the funding formulas
administered by FTA under 49 U.S.C. 5307 and 49 U.S.C. 5309. FTA
received thirty-five comments on this condition, with some parties
offering multiple comments. Eight commenters favored FTA's proposed
policy. Eighteen commenters asked FTA to expand its policy to classify
all HOT lanes as fixed guideway miles for purposes of the funding
formulas administered by FTA, regardless of whether the HOT lane
facility was newly constructed or was previously an HOV facility. Seven
commenters asked FTA not to fund HOT lane facilities at a level that
would dilute the pool of transit funding available for existing fixed
guideway facilities. Two commenters proposed that FTA require converted
HOV lanes to have operated as HOV lanes for seven years prior to their
conversion to HOT lanes before FTA would classify them as fixed
guideway miles.
FTA Response: FTA recognizes that all HOT lanes provide similar
benefits to metropolitan areas that are experiencing severe and
worsening congestion, regardless of whether the facility is newly
constructed or converted from HOV or general purpose lanes. However,
the purpose of the final policy statement is to ensure that Federal
transit funding for congested urban areas is not decreased when
existing HOV facilities are converted to variably-priced HOT lanes in
an effort by localities to reduce congestion, improve air quality, or
maximize throughput using excess HOV lane capacity and to promote a
uniform approach by the Department's operating agencies concerning HOV-
to-HOT conversions. If FTA were to classify all HOT lanes as fixed
guideway miles without a commensurate increase in overall funding
levels, it could negatively impact the ability of many transit
operators to finance needed capital maintenance on existing
infrastructure. For this reason, FTA has limited the scope of the final
policy statement to classifying as fixed guideway miles only those HOT
lane facilities that are converted from HOV lanes which had previously
been classified as fixed guideway miles. In this way, FTA will ensure
that Federal transit funding for congested urban areas is not decreased
when existing HOV facilities are converted to variably-priced HOT
lanes. FTA believes it appropriate to leave for the U.S. Congress, and
not to determine on an administrative basis, the question of whether
and on what terms facilities newly constructed as HOT lanes or general
purpose lanes converted directly to HOT lanes would be classified as
fixed guideway miles given the substantial reallocation of formula
funds among transit authorities that might result over time if such
facilities were also classified as fixed guideway miles.
FTA has included the following footnote (15) in section II (b)(i)
of this notice in response to the recommendation that FTA require HOV
lanes to have operated as HOV lanes for seven years before they may be
converted to HOT lanes and remain classified as fixed guideway miles:
FTA apportions amounts made available for fixed guideway
modernization under 49 U.S.C. 5309 pursuant to fixed guideway
factors detailed at 49 U.S.C. 5337. One of these fixed guideway
factors, located at 49 U.S.C. 5337(a)(5)(B), apportions a percentage
of the available fixed guideway modernization funds to `fixed
guideway systems placed in revenue service at least seven years
before the fiscal year in which amounts are made available.' For
purposes of 49 U.S.C. 5337(a)(5)(B), (i) no HOV facility that has
been in revenue service at least seven years shall forfeit its
eligibility for fixed guideway modernization funds because it is
converted to a HOT lane facility in accordance with this final
policy statement; and (ii) no HOV facility that has been in revenue
service for less than seven years shall forfeit the years it has
accrued thereunder because it is converted to a HOT lane facility,
and for so long as the HOT lane facility maintains its fixed
guideway classification in accordance with this policy
[[Page 1370]]
statement, it shall continue to accrue years thereunder.
Accordingly, FTA will not require that converted HOV lanes operate as
HOV lanes for seven years before they may be converted to HOT lanes and
remain classified as fixed guideway miles in accordance with this final
policy statement.
(c) Monitoring and Performance Standards. In its notice describing
the proposed policy, FTA requested comments on its proposal to classify
HOT lanes as fixed guideway miles for purposes of the funding formulas
administered under 49 U.S.C. 5307 and 49 U.S.C. 5309, so long as each
of three conditions is satisfied. The second condition is that the HOT
lanes are continuously monitored and continue to meet performance
standards that preserve free flow traffic conditions as specified in 23
U.S.C. 166(d). FTA received twenty comments on this topic. Four
commenters favored FTA's proposed position. Seven commenters proposed
that FTA require a minimum level of transit service on a HOT lane
facility before its lanes could be classified as fixed guideway miles
for purposes of the funding formulas administered by FTA. Five
commenters requested that FTA adopt more exacting performance
standards. One commenter requested that FTA state explicitly that local
agencies may increase HOV occupancy levels as necessary to ensure free
flow conditions needed for transit bus service. Another commenter asked
FTA to amend its policy to state that single occupant vehicles may be
permitted on HOT lanes that are classified as fixed guideway miles,
provided that the lanes satisfy the conditions set forth in FTA's final
policy statement. One commenter requested that FTA acknowledge that
compliance with State law governing performance standards for HOT lanes
suffices in terms of meeting the condition that the HOT lanes are
continuously monitored and continue to meet performance standards that
preserve free flow traffic conditions as specified in 23 U.S.C. 166(d).
One commenter asked FTA to require a study on degradation of transit
service before an HOV facility may convert to a HOT lane facility and
be classified as fixed guideway miles for purposes of funding formulas
administered by FTA.
FTA Response: FTA disagrees that it should require a more exacting
performance standard, including a minimum level of transit service. FTA
recognizes that a more exacting standard would be necessary if all HOT
lane facilities were eligible for classification as fixed guideway
miles, for under this scenario rural or suburban HOT lane facilities
with little or no transit service could receive a significant portion
of the Federal transit funds needed by the Nation's largest transit
providers to maintain their current infrastructure. For this reason,
FTA has limited the benefits of the final policy to HOV lanes that have
previously been classified as fixed guideway miles. Such designation as
a fixed guideway mile indicates that a facility has a minimum level of
transit service. FTA believes that compliance with the performance
standards codified at 23 U.S.C. 166(d) is sufficient to ensure free
flow traffic conditions and to avoid degradation of transit service on
these facilities when converted from HOV lanes to HOT lane facilities.
Moreover, HOV facilities constructed using capital funds available
under 49 U.S.C. 5309(d) or (e) could be required, when an HOV facility
converts to a HOT lane facility, to achieve a higher performance
standard than required under 23 U.S.C. 166(d). In all circumstances,
FTA shall require real-time monitoring of traffic flows to ensure on-
going compliance with 23 U.S.C. 166(d).
FTA does not agree that compliance with State law governing HOT
lane performance standards will satisfy FTA's requirements in all
circumstances. Rather, FTA shall require all HOT lane facilities to
comply with the statutory requirements of 23 U.S.C. 166 to be
classified as fixed guideway miles for purposes of FTA's funding
formulas. It may be the case that the laws of certain states require a
higher level of performance than the Federal standard articulated here.
In these instances, the lesser Federal standard should present no
obstacle to HOT conversion.
With respect to the request that FTA require a study on the
degradation of transit service before an HOV facility may convert to a
HOT facility, FTA (i) believes that compliance with the free flow
traffic requirements of 23 U.S.C. 166 is sufficient to avoid the
degradation of transit service on these facilities and accordingly (ii)
will not require that project sponsors incur the additional expense of
a formal study on the degradation of transit service.
(d) Program Income and Toll Revenues. In its notice describing the
proposed policy, FTA requested comments on its proposal to classify HOT
lanes as fixed guideway miles for purposes of the funding formulas
administered under 49 U.S.C. 5307 and 49 U.S.C. 5309, so long as each
of three conditions is satisfied. The third condition is that program
income from the HOT lane facility, including all toll revenue, is used
solely for ``permissible uses.'' FTA received twenty-five comments on
this condition. Five commenters favored FTA's proposed policy. Seven
commenters requested that FTA expressly state in its final policy that
grantees may use toll revenues for transit operating costs. Four
commenters stated that FTA funds should not be used for the maintenance
and/or construction of HOT lane facilities. Four commenters asked FTA
to require that all Federal transit funds generated by HOT lane
facilities because of their classification as fixed guideway miles be
directed to the ``designated recipient'' for Federal transit funding.
Three commenters stated that FTA should not permit the operators of HOT
lane facilities to finance a HOT lane facility's operating losses with
Federal funds generated by the facility's classification as fixed
guideway miles. One commenter asked FTA not to limit the use of HOT
lane toll revenues to transit. Another commenter asked FTA to require
that priority of payment be provided for in the project implementation
documents.
FTA Response: Based on the recommendation of several commenters
that FTA expressly state that grantees may use toll revenues for
transit operating costs, and pursuant to 49 CFR part 18.25, which
states that FTA ``grantees may retain program income for allowable
capital or operating expenses,'' FTA has added transit operating costs
to its description of ``permissible uses'' at section II(b)(iii) of
this notice.
FTA disagrees with the comment that its grantees should not use
Federal transit funds for the maintenance and/or construction of HOT
lane facilities. The commenter did not indicate whether it referred to
the use of grant funds or program income. While FTA recognizes both HOV
and HOT lanes as permissible incidental uses of FTA-funded assets, FTA
grant funds shall not be used to construct a HOT lane facility beyond
what is allowed by 49 U.S.C. 5302(a)(4), as implemented by FTA's
regulations, as amended from time to time.\21\ Any facility that
converts from an HOV to a HOT facility, and retains its classification
as a fixed guideway by satisfying the conditions of this policy
statement, may use program income in accordance with this final policy
[[Page 1371]]
statement, the Department's regulation at 49 CFR part 18.25, and other
applicable statutes, regulations and requirements. Similarly, FTA
disagrees with the comment that it should limit the use of HOT lane
toll revenues to transit. In many cases, a HOT lane facility may have
received (or receives) funding from FTA and another Federal agency,
such that use of the facility's program income is governed by more than
one Federal program. In these instances, FTA's restrictions concerning
permissible use shall not apply to more than transit's allocable share
of the facility's program income, as described in section II of this
notice. FTA will not require recipients to assign priority in payment
to any permissible use.
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\21\ 49 U.S.C. 5302(a)(4) defines ``fixed guideway'' as ``a
public transportation facility (A) using and occupying a separate
right-of-way or rail for the exclusive use of public transportation
and other high occupancy vehicles; or (B) using a fixed catenary
system and a right-of-way usable by other forms of transportation.''
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Federal transit law requires FTA to disburse certain funds to the
designated recipient. The designated recipient for FTA formula funds
shall not be changed because the grantee converted an HOV facility to a
HOT facility, in accordance with the final policy statement. FTA shall
not prevent such designated recipients from using the funds for
eligible activities in accordance with the process for programming
transit funds described at 23 CFR part 450.324(l) of the joint FTA-FHWA
planning regulations.
(e) Transit Fares and Tolls. In its notice describing the proposed
policy, FTA requested comments on transit fares and tolls on HOT lane
facilities. FTA stated that it would not condition the receipt of
Federal transit funds by a qualifying HOT lane facility on the tolling
authority's adoption of policies concerning the price of transit
services on the HOT lane facility or the tolls payable by single
occupant vehicles. FTA would allow grantees and tolling authorities to
develop their own fare structures for transit services and tolls on HOT
lane facilities. FTA received sixteen comments on this topic. Without
further comment, five commenters agreed with FTA's proposed policy not
to regulate toll prices. Ten commenters stated that transit vehicles
should be exempt from tolls charged on Federally-funded HOT lane
facilities for its lanes to be classified as fixed guideway miles for
purposes of the funding formulas administered by FTA. One commenter
asked FTA to require that transit fares and tolls remain competitive.
FTA Response: Federal transit law prohibits FTA from regulating the
``rates, fares, tolls, rentals, or other charges prescribed by any
provider of public transportation.'' 49 U.S.C. 5334(b)(1). Accordingly,
FTA shall not condition the receipt of Federal transit funds by a
qualifying HOT lane facility on the tolling authority's adoption of
policies concerning the price of transit services on the HOT lane
facility or the tolls payable by single occupant vehicles. FTA will
allow grantees and tolling authorities to develop their own fare
structures for transit services and tolls, respectively, on HOT lane
facilities. Transit fares shall remain subject to 49 U.S.C. 5332
(Nondiscrimination) and 49 U.S.C. 5307 (Urbanized area formula grants),
however.
(f) Return of Funds under Full Funding Grant Agreements. In its
notice describing the proposed policy, FTA requested comments on its
proposal that, in the event that an HOV facility is converted to a HOT
facility and the HOV facility has received funds through FTA's New
Starts program, FTA would not require the grantee to return such funds,
so long as the facility complied with the conditions set forth in the
proposed policy. FTA received one comment on this topic. The commenter
expressed concern that, when the grantee is not also the tolling
authority, the tolling authority may make business decisions contrary
to the interest of the grantee/transit provider, thus forcing the
grantee/transit provider to repay New Starts funding to FTA.
FTA Response: It appears that the commenter misunderstood the scope
of FTA's proposed policy, which states that ``in the event that an HOV
facility is converted to a HOT facility and the HOV facility has
received funds through FTA's New Starts program, FTA would not require
the grantee to return such funds so long as the facility complied with
the conditions set forth in this guidance.'' If a grantee wishes to
convert an existing HOV facility to a HOT lane facility and maintain
the classification of its facility as a fixed guideway for purposes of
FTA's funding formulas, it must comply with the conditions set forth in
the final policy statement. To the extent that the facility is subject
to a Full Funding Grant Agreement, the grantee is obligated to abide by
the requirements thereof, just as it is bound to any other contractual
or legal obligation.
(g) Miscellaneous Comments. FTA received seven miscellaneous
comments in response to its proposed policy. One commenter asked FTA to
address a circumstance in which a previously eligible HOV lane (or a
portion of an HOV lane) is temporarily or permanently taken out of
service in order to be reconstructed and expanded into an improved HOT
lane facility in the same corridor. A second commenter requested that
FTA indicate whether it would classify as fixed guideway miles bus-only
shoulders converted to HOT lanes when the bus-only shoulders are
currently classified as fixed guideway miles. Another commenter asked
FTA to clarify its policy with respect to variable-priced express
lanes. Two commenters asked FTA to require coordination between
privately operated HOT lane facilities and public transportation
agencies. One commenter asked FTA to connect this policy with transit
supportive land use. And another commenter argued that FTA's policy
should not affect New Starts project eligibility criteria.
FTA Response: FTA recognizes that it may be necessary to
temporarily remove an HOV lane from service in order to convert it into
a HOT lane facility. Such a HOT lane facility will not lose its
classification as a fixed guideway so long as it satisfies the
conditions set forth in the final policy statement.
FTA agrees with the proposal that it classify as fixed guideway
miles bus-only shoulders converted to HOT lanes as long as the bus-only
shoulders are currently classified as fixed guideway miles and satisfy
the conditions of this final policy statement. Accordingly, FTA has
included the following language at footnote (16) in section II(b)(i) of
this notice:
FTA shall classify HOT lane facilities converted from bus-only
shoulders as fixed guideway miles, so long as such HOT lanes satisfy
conditions (ii) and (iii) of this final policy statement and were
bus-only shoulders previously reported in the National Transit
Database as fixed guideway miles for purposes of the funding
formulas administered by FTA under 49 U.S.C. 5307 and 5309.
The commenter that asked FTA to consider variably-priced express
lanes did not provide enough information for FTA to determine whether
such facility could satisfy the conditions set forth in the proposed
policy. FTA responds by reiterating its statement at section II(b)(i)
of this notice, that with the exception of bus-only shoulders,
``neither non-HOV facilities nor facilities constructed as HOT lanes
would be eligible for classification as fixed guideway miles.''
The comment requesting that FTA require coordination between
privately operated HOT lane facilities and public transportation is
beyond the scope of this notice. FTA's Planning and Assistance
Standards are located at 49 CFR part 613.
Similarly, the comments requesting that FTA connect this policy
with transit supportive land use and that this policy not affect FTA's
New Starts project eligibility criteria are beyond the scope of this
notice, which is limited to the classification of HOT lane facilities
[[Page 1372]]
as fixed guideway miles for purposes of FTA's funding formulas.
Issued on January 8, 2007.
James S. Simpson,
Administrator.
[FR Doc. E7-263 Filed 1-10-07; 8:45 am]
BILLING CODE 4910-57-P