Tolling is allowed for five types of highway construction activities, including reconstruction of Interstate bridges and tunnels, pursuant to 23 U.S.C. 129. These activities include:
• Initial construction of non-Interstate toll facilities and approaches to these facilities;
• Reconstruction of existing toll facilities;
• Reconstruction of free bridges or tunnels and conversion to toll facilities;
• Reconstruction of a free non-Interstate highway and conversion to a toll facility; and
• Preliminary feasibility studies for any of the above.
For each of these activities the project sponsor must enter into a toll agreement with FHWA and toll revenue must be used for debt service, a reasonable return on private investment, and the costs of operation and maintenance. Excess revenues may be used for highway and transit purposes authorized under Title 23 if the State certifies annually that the toll facility is being adequately maintained.81
While the focus of these programs is tolling and pricing, not PPPs, these programs can be expected to facilitate PPPs because of the ability and willingness of the private sector to assume significant financing, traffic and technological risk on tolling and pricing projects. A number of the tolling and pricing projects that are currently underway around the United States were implemented with a PPP structure because of the benefits that PPPs provide for these types of projects. For example, the SR-91 Express Lanes in southern California was implemented as a PPP and the Capital Beltway HOT Lanes project in northern Virginia is being implemented as a PPP.
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81 Title 23 United States Code (23 U.S.C.) Section 129 Toll Agreements, available on the FHWA website at: http://www.ops.fhwa.dot.gov/tolling_pricing/toll_agreements.htm (last visited July 7, 2008)