House transportation committee chair Oberstar says "No tolling interstates" - did he forget HB44?

March 30, 2010
By Peter Samuel

House transportation committee chairman James Oberstar said during a hearing on Capitol Hill March 26th that despite the major shortfall in revenue for gas tax-funded roads: "We're not going to allow tolling of the interstate highway system. It's already been built and paid for." Laying aside that most toll proposals are to support enlargement or rebuilding of the interstate system not yet built or paid for, and management of traffic, this is a far more sweeping anti-toll position than Oberstar has previously espoused.

His draft 5-year Surface Transportation Authorization Act, HB44, filed in June 2009 appeared to open up new opportunities for tolling. Deferred at the request of the White House to the end of 2010 the bill devotes many pages to new provisions to allow and supervise tolling. A search for "toll" in the pdf file of the Oberstar bill finds "More than 100 matches."

HB44 proposes repeal of the existing limits on tolling to several narrow "pilot programs" and establishes a special new federal office within FHWA to approve and supervise tolling on interstate and other federal-aid highways.

In the inimitable manner of US law HB44 specifies in fine detail how tolling will be supervised. We quote some of the provisions Congressman Oberstar sponsored:

Text of HB44 covering tolls

'' 611. Office of Public Benefit
''(a) ESTABLISHMENT.--There is established in the Federal Highway Administration an Office of Public Benefit to provide for the protection of the public interest in relation to highway toll projects and public-private partnership agreements on Federal-aid highways.
''(b) DIRECTOR.--The Office shall be headed by a Director, who shall be appointed by the Secretary.
''(c) DUTIES.--The Director shall carry out the following duties:
''(1) LEADERSHIP AND TECHNICAL ASSISTANCE.--The Director shall--
''(A) provide national leadership in ensuring the protection of the public interest in relation to highway toll projects and public-private partnership agreements on Federal-aid highways;
''(B) compile and promote the use of policies, practices, and techniques for protecting the public interest in relation to highway toll projects and public-private partnership agreements on Federal-aid highways; and
''(C) upon request, assist State and local transportation departments, elected officials, and other public officials in implementing such policies, practices, and techniques.
''(2) ADMINISTRATION OF TOLL AGREEMENTS.--The Director shall administer toll agreements under section 129, including--
''(A) reviewing and approving or disapproving proposed toll rate schedules in accordance with section 129(a)(3)(G);
''(B) reviewing and approving or disapproving any substantial proposed change to such toll rate schedules in accordance with such section; and
''(C) any other activities that the Secretary determines necessary under section 129(a)(3)(B).
''(3) COMPLIANCE WITH TOLL AGREEMENTS.--
The Director shall monitor the compliance of public authorities with the requirements applicable to toll agreements under section 129, including--
''(A) restrictions on use of toll revenues;
''(B) the prohibition on noncompete agreements;
''(C) prior to the implementation of tolls on the facility--
''(i) allowance for public comment on toll rate schedules;
''(ii) consideration of impacts of the toll on interstate commerce or travel;
''(iii) provision of operational improvements and transit service sufficient to accommodate travel diverted from the facility due to the collection of the toll; and
''(iv) provision of measures to mitigate the impact of the toll on low-income travelers;
 ''(D) public availability of rate data for each tolled facility in an interoperable electronic format that complies with the requirements, standards, and performance specifications established under the final rule required by section 1301(e) of the Surface Transportation Authorization Act of 2009; and ''(E) any other provisions applicable to toll agreements under such section.
''(4) COMPLIANCE WITH PUBLIC-PRIVATE PARTNERSHIP REQUIREMENTS.--The Director shall ad- minister and monitor the compliance of States, and of other public authorities subject to section 112(h), with the requirements of section 112(h), including--
''(A) pursuant to section 112(h), that the public authority, prior to the award of any contract awarded under section 112(b) for a project that involves a public-private partnership
agreement--
''(i) assess whether the use of a public-private partnership agreement, as proposed for the potential project, provides value compared with traditional public delivery methods;
''(ii) make available to the public key terms of the contract to be awarded; and
''(iii) offer interested parties a reasonable opportunity to comment on the pro-
posed agreement;
''(B) pursuant to section 112(h), that any
contract awarded under section 112(b) for a project that involves a public-private partnership
agreement--
''(i) includes provisions to prohibit the closing of the highway facility or portions thereof to vehicular traffic except in specifically enumerated circumstances;
''(ii) does not include any provision under which the State is prevented from improving or expanding the capacity of public roads in the same travel corridor as the highway facility;
''(iii) includes provisions to allow the public authority the option of reclaiming ownership of the highway facility prior to the end of the term of the public-private partnership agreement; and
''(iv) sets forth standards that the highway facility must meet or must be brought up to by the private partner at the end of the term of the public-private partnership agreement; and
 ''(C) any other requirement of section 112(h).
''(5) COMPLIANCE WITH REQUIREMENTS ON
USE OF PROCEEDS.--The Director shall monitor the compliance of States with restrictions under section 156(c) on the use of the Federal share of net income from the revenues obtained through the sale or lease of real property.
''(6) OTHER DUTIES.--The Director shall carry out any additional duties consistent with this section that the Secretary may require. ''(d) REPORT TO CONGRESS.--
''(1) IN GENERAL.--Not later than one year after the date of enactment of this section, and annually thereafter, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a re- port on the activities of the Director under this section.
''(2) CONTENTS.--The report shall contain, at a minimum--
''(A) a summary of the activities that the Director has carried out under this section in the year prior to submission of the report, including--
''(i) a description of the Director's
oversight activities under subsection (c);
''(ii) a description of any toll agreements that the Director administered
under subsection (c)(2); and
''(iii) a description of actions that the Secretary has taken in response to any noncompliance described under paragraph (2);
 ''(B) a description of the compliance or
noncompliance of State and public authorities in the year prior to submission of the report with the requirements of sections 112(h), 129, and 156(c); and
''(C) a description of significant activities (statutory, policy, or otherwise) that States and other public entities have taken in that annual period to protect the public interest in relation to highway toll projects and public-private partnership agreements on Federal-aid highways; and
''(D) such recommendations as the Secretary may have for enhancing the ability of the Director to meet the objectives of this section.
''(e) DEFINITIONS.--In this section, the following definitions apply:
''(1) HIGHWAY TOLL PROJECT.--The term 'highway toll project' means a project that--
''(A) involves the institution of tolls on a
Federal-aid highway; and
''(B) is subject to the requirements of section 129.
''(2) PRIVATE PARTNER.--The term 'private partner' has the meaning given that term in section 112(h).
''(3) PUBLIC AUTHORITY.--The term 'public authority' has the meaning given that term in section 112(h).
''(4) PUBLIC-PRIVATE PARTNERSHIP AGREE- MENT.--The term 'public-private partnership agreement' has the meaning given that term in section 112(h).''.
(b) CLERICAL AMENDMENT.--The analysis for chapter 6 is amended by adding at the end the following: ''611. Office of Public Benefit.''.

Urban projects

p252 of the bill also permits federal participation in urban toll projects:

''(q) USE OF TOLLS.--Notwithstanding section 301, the Secretary may permit Federal participation under this section in a toll facility in an urbanized area that is subject to a metropolitan mobility plan approved under this section. Such participation shall be in accordance with a toll agreement entered into with the Secretary that meets the requirements of section 129(a)(3).

Section 1301

Under Subtitle C - Finance p288 on:

SEC. 1301. TOLL ROADS, BRIDGES, TUNNELS, AND FERRIES. (a) TOLL AGREEMENTS.--Section 129(a)(3) is amended to read as follows:
''(3) TOLL AGREEMENTS.--
''(A) IN GENERAL.--Before the Secretary may permit Federal participation under this subsection or subsection (d), (e), or (f) in a highway, bridge, or tunnel located in a State,
the public authority (including the State transportation department) having jurisdiction over the highway, bridge, or tunnel must enter into an agreement with the Secretary that includes provisions sufficient to satisfy the requirements of this paragraph.
''(B) ADMINISTRATION AND MONITORING OF TOLL AGREEMENTS.--The Secretary, acting through the Office of Public Benefit, shall administer toll agreements entered into under this paragraph and monitor the compliance of public authorities with such agreements.
''(C) PRIMARY USES OF TOLL REVENUES.--All toll revenues received from operation of the toll facility shall be used first for debt service, for reasonable return on investment of any private person financing the project, and for the costs necessary for the proper operation and maintenance of the toll facility, including reconstruction, resurfacing, restoration, and rehabilitation.
''(D) ELIGIBLE USES OF EXCESS TOLL REVENUES.--
''(i) IN GENERAL.--Subject to sub-section (d), if the public authority certifies
annually that the tolled facility is being adequately maintained and that the requirements of subparagraphs (A) and (C) have been met, the public authority may use any additional toll revenues generated from the tolled facility only for--
''(I) projects for which Federal funds may be obligated by a State under this title or chapter 53 of title 49; and
''(II) operating costs of equipment and facilities for use in public transportation.
''(ii) LOCATION.--A project receiving
toll revenues under clause (i) shall be located in, and equipment and facilities receiving operating costs from toll revenues under clause (i) shall provide public transportation service in--
''(I) the same travel corridor as the tolled facility (if the toll is applied to a single facility); or
''(II) the area impacted by the toll (if the toll is applied on a cordon or area-wide basis).
''(E) PROHIBITION ON NONCOMPETE
AGREEMENTS.--The public authority shall not enter into an agreement with a private person under which the State is prevented from im- proving or expanding the capacity of public roads in the same travel corridor.
''(F) PUBLIC COMMENT.-- ''(i) IN GENERAL.--The public authority shall offer the public a reasonable opportunity to comment on the rate schedule of any proposed toll before the initial implementation of tolling on the facility and before any substantial modification to such rate schedule (other than changes in toll rates consistent with the original rate schedule).
''(ii) METHODS.--In carrying out clause (i), the public authority, to the maximum extent practicable, shall hold public meetings at convenient and accessible locations and times and make information pertaining to the proposed toll rate schedule available in electronically accessible format and means, such as the World Wide Web, as appropriate to afford reasonable opportunity for consideration of public informa- tion under clause (i).
''(G) REVIEW BY SECRETARY.--
''(i) INITIAL REVIEW.--The Secretary shall review the rate schedule of any pro- posed toll before the initial implementation of tolling on the facility, and shall only approve such rate schedule if, in the Secretary's judgment, the rate schedule--
''(I) provides for only just and reasonable toll rates and toll rate in- creases;
''(II) allows no private person responsible for financing a project on the facility or otherwise responsible for the facility's maintenance and operations to achieve more than a reasonable rate of return on investment; and
''(III) has no substantial negative impacts on interstate commerce or travel.
''(ii) REVIEW UPON SUBSTANTIAL
CHANGE.--The public authority (or any other private or public entity with authority to modify toll rates on the toll facility) shall not make any substantial modifica- tion to the initial toll rate schedule (apart from changes in toll rates consistent with the original rate schedule) without first al- lowing the Secretary to review and approve or not approve the proposed modification.
''(iii) TERMS FOR APPROVAL.--The Secretary shall only approve any such modified rate schedule if, in the Secretary's judgment, the modification would allow for--
''(I) just and reasonable toll increases; and
''(II) any private person responsible for financing a project on the facility or otherwise responsible for the facility's maintenance and operations to achieve no more than a reasonable rate of return on investment.
''(iv) PROVISION OF INFORMATION.-- public authority (or any other private
The or public entity with authority to modify toll rates on the toll facility) shall provide the Secretary with information regarding the proposed toll rate schedule sufficient, in the judgment of the Secretary, to allow the Secretary to conduct any reviews and make any approvals or disapprovals under this subparagraph.
''(v) JUDICIAL REVIEW.--An approval or disapproval of a toll rate schedule issued by the Secretary under this subparagraph shall be subject to judicial review under chapter 7 of title 5, if a claim for the re- view is filed on or before the 90th day fol- lowing the date on which the approval or disapproval is issued.
''(H) MITIGATION MEASURES.--Before instituting tolls on the facility, the public authority shall--
''(i) consider, to the satisfaction of the Secretary, any substantial negative impacts that the toll would likely impose on inter- state commerce or travel;
''(ii) provide operational improvements and transit service sufficient, as determined by the Secretary, to accommodate any substantial amount of travel that is
projected to be diverted from the facility due to the collection of the toll; and
''(iii) provide measures, such as toll discounts or credits, that are sufficient, in the judgment of the Secretary, to mitigate the impact of the toll on low-income travelers.
''(I) AVAILABILITY OF TOLL RATE DATA.--
The public authority shall make toll rate data for each tolled facility located on the National Highway System publicly available in an inter- operable electronic format that complies with the requirements, standards, and performance specifications established under the rule re- quired by section 1301(e) of the Surface Transportation Authorization Act of 2009.
''(J) PUBLIC NOTICE.--The public authority shall make the toll agreement available to the public in electronically accessible format and means, such as the World Wide Web.''.
(b) ADDITIONAL TOLL PROVISIONS.--Section 129 is amended by adding at the end the following:
''(d) HOV LANES.--
''(1) FEDERAL PARTICIPATION.--Notwithstanding section 301, the Secretary may permit Federal participation under this section in a high occupancy vehicle facility--
''(A) in which the operators of low occupancy vehicles or low emission or energy-efficient vehicles pay a toll in order to use the facility; and
''(B) for which the State agency with responsibility for ownership or operation of such lanes makes an annual certification that the facility complies with the requirements of section 166(d).
''(2) SPECIAL RULE FOR USE OF REVENUES.-- Notwithstanding subsection (a)(3)(D), after complying with subsection (a)(3)(C), the State shall use any additional toll revenues generated from a tolled high occupancy vehicle facility for capital, maintenance and operating costs of equipment and facili- ties for use in public transportation within the same travel corridor as the tolled facility.
''(e) VARIABLE TOLLS IN DESIGNATED AREAS.-- Notwithstanding section 301, the Secretary may permit Federal participation in toll facilities that institute variable tolls as part of a metropolitan mobility plan in accord- ance with section 701(q).
''(f) EXISTING AGREEMENTS.--
"'(1) IN GENERAL.--If, before the date of enact-
ment of this subsection, a toll agreement or coopera- tive agreement has been executed under one of the sections referred to in paragraph (2), the agreement shall remain valid and subject to such terms and conditions as were in effect under the agreement on the day before such date of enactment if--
''(A) a final decision under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) has been issued for the project that is the subject of such agreement; or
''(B) a contract has been executed for the construction, development, or operation of the facility that is the subject of such agreement.
''(2) PREVIOUS TOLL AUTHORITIES.--The sections referred to in paragraph (1) include the fol- lowing:
''(A) This section.
''(B) Section 119(e), as in effect on the day before the date of enactment of the Intermodal Surface Transportation Efficiency Act of 1991 (Public Law 102-240).
''(C) Section 166.
''(D) Section 1012(b) of the Intermodal
Surface Transportation Efficiency Act (23 U.S.C. 149 note; 105 Stat. 1938).
''(E) Section 1216(b) of the Transpor- tation Equity Act for the 21st Century (23 U.S.C. 129 note; 112 Stat. 212).
''(F) Sections 1604(b) and 1604(c) of SAFETEA-LU (23 U.S.C. 129 note; 119 Stat. 1250).
''(g) DEFINITIONS.--In this section, the following definitions apply:
''(1) LOW OCCUPANCY VEHICLE.--The term 'low occupancy vehicle' means a vehicle that is au- thorized to use a high occupancy vehicle facility under section 166(b)(4).
''(2) LOW EMISSION OR ENERGY-EFFICIENT VE- HICLE.--The term 'low emission or energy-efficient vehicle' means a vehicle that is authorized to use a high occupancy vehicle facility under section 166(b)(5).
''(3) OFFICE OF [PUBLIC BENEFIT].--The term 'Office of Public Benefit' means the office established by section 332.''. (c) TECHNICAL AMENDMENTS.--Section 129 is fur-
ther amended--
(1) in subsection (b) by inserting ''APROACHES TO FERRIES.--'' before ''Notwithstanding'';
(2) in subsection (c) by inserting ''FERRY BOATS AND TERMINAL FACILITIES.--'' before ''Not- withstanding''; and
(3) by striking ''and repair'' and inserting ''repair''.
(d) CONFORMING AMENDMENTS.-- (1) REPEAL OF OTHER TOLLING PROVISIONS.--
The following provisions of law are repealed: (A) Section 1012(b) of the Intermodal Surface Transportation Efficiency Act (23
U.S.C. 149 note; 105 Stat. 1938). (B) Section 1216(b) of the Transportation
Equity Act for the 21st Century (23 U.S.C. 129 note; 112 Stat. 212).
(C) Section 1604(b) of SAFETEA-LU (23 U.S.C. 129 note; 119 Stat. 1250)
(D) Section 1604(c) of SAFETEA-LU (23 U.S.C. 129 note; 119 Stat. 1250). (2) PROCEEDS FROM SALE OR LEASE OF REAL PROPERTY.--Section 156(c) is amended-- (A) by striking ''The Federal'' and inserting the following:
''(1) IN GENERAL.--The Federal''; and
(B) by adding at the end the following:
''(2) SPECIAL RULE FOR TOLLED FACILITIES.-- The Federal share of net income from the revenues obtained by a State under subsection (a) with respect to a facility tolled under section 129 shall be used by the State for projects eligible under this title, or for projects eligible chapter 53 of title 49, that are located in the same travel corridor as the
tolled facility.''.
(3) FREEDOM FROM TOLLS.--Section 301 is
amended by striking ''with respect to certain toll bridges and tunnels''.
 (e) INTEROPERABILITY OF TOLL COLLECTION DEVICES.--
(1) ESTABLISHMENT OF STANDARD.--Not later than 18 months after the date of enactment of this Act, the Secretary, by rulemaking, shall establish a national standard for the interoperability of electronic toll collection devices for all toll facilities on the National Highway System.
(2) ADOPTION OF STANDARD.--Not later than two years after the Secretary's establishment of the national standard under paragraph (1), all toll facilities on the National Highway System shall adopt
such standard.

see http://Transportation.house.gov/Media/file/Highways/HPP/OBERST_044_xml.pdf

If we're now to believe chairman Oberstar all these words simply add up to "We're not going to allow tolling of the interstate system..."

That Office of Public Benefit wouldn't have much to do.

Of course the bill now won't come up for consideration until after the November election and there may well be a different House Transportation Committee.

TOLLROADSnews 2010-03-29


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