SAFETEA-LU created a variety of programs authorizing the implementation of tolling on Interstate highways. While these programs do not require that tolling projects be PPPs, they do facilitate the use of PPPs to implement tolling on Interstate highways and the potential involvement of the private sector in these projects is contemplated by the legislation.
Generally, the imposition of tolls on highways that have received Federal-aid, including Interstate highways, is prohibited by Federal law.72 By way of background, Federal highway laws typically apply only to highways that have received Federal-aid. The total highway system in the United States consists of about 4 million miles of roadway, but only a portion of this mileage is subject to Federal law, including laws regulating the use of tolls. The major categories of highways in the United States and their relative mileage are as follows:
Category of Highway | Approximate Mileage |
Total U.S. Roadways: | 4,000,000 miles |
Federal-aid Highway System ("FHS"): | 1,000,000 miles |
National Highway System ("NHS"): | 162,000 miles |
Interstate Highway System ("IHS"): | 47,000 miles |
Many Federal laws apply to the entire NHS, of which nearly all 47,000 miles of the IHS is a subset. Some laws apply only to the IHS components, and still others may apply to the entire FHS. As a general matter, Federal highway law does not apply to the 3 million miles of non-Federal-aid roadway. For these roadways, authority to implement tolling is a matter of state and local law.
SAFETEA-LU's programs authorizing tolling on Interstate highways are more significant than the relative proportion of mileage classified as IHS would suggest because Interstate highways have heavier traffic than any of the other functional classification of roads in the United States.73 This is important for two reasons. First, tolling is most viable for projects in which the tolls are expected to provide sufficient revenue to repay project costs. Second, the highways that have the most traffic will benefit the most from the use of tolling and pricing to manage congestion.
Prior to SAFETEA-LU there were exceptions to the general rule that tolling is prohibited on Federal-aid highways, but SAFETEA-LU created three new programs for tolling and expanded a fourth. With the SAFETEA-LU programs there are currently six exceptions to the general prohibition of tolling on the IHS: (i) the Interstate System Construction Toll Pilot Program, (ii) the Interstate System Reconstruction & Rehabilitation Pilot Program, (iii) the Value Pricing Program, (iv) the High Occupancy Toll (HOT) Lanes program, (v) the Express Lanes Demonstration Program, and (vi) Section 129 Toll Agreements.
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72 Title 23 U.S. Code, Section 301. Non-Interstate highways that receive Federal-aid may be tolled as part of a construction project pursuant to Section 129 of Title 23 if revenues are used for debt service, a reasonable return on private investment and O&M costs. Excess revenues can then be used for any purpose eligible for Federal aid under the Federal highway laws.
73 2006 Status of the Nation's Highways, Bridges, and Transit: Conditions & Performance, USDOT, Federal Highway Administration, Federal Transit Administration, 2006, pg. 3-8. The report indicates that roads classified as "Interstate" have the largest percentage of vehicle miles traveled ("VMT") per lane mile.