The Moving Forward Act (H.R. 2) Would Both Restrict and Encourage Highway Tolls

The Moving Forward Act (H.R. 2) Would Both Restrict and Encourage Highway Tolls

INSIGHTi
The Moving Forward Act (H.R. 2) Would Both
Restrict and Encourage Highway Tolls
Updated July 28, 2020
Section 1110 of the Moving Forward Act (H.R. 2, as passed in the House of Representatives July 1, 2020)
would make substantial changes to the statutory and regulatory framework governing highway
transportation tolls. Some of the changes would increase federal oversight of tolling operations while
others encourage state and local governments to increase use of tolling. On the one hand, by reinstating
the requirement that a detailed tolling agreement be negotiated between states or public authorities and
the Secretary of Transportation before a previously untolled federal-aid highway, bridge, or tunnel is
made subject to tolls, the provision would increase the oversight role of the U.S. Department of
Transportation (DOT). On the other hand, the congestion pricing provisions in the act would increase the
ability of states to implement tolling on congested Interstate System highways. These new provisions,
together with the complexity of existing law, could create ambiguity about what is and what is not
permissible when implementing new tolling schemes.
Federal tolling law applies only to roads, bridges, and tunnels that are eligible for federal aid. These
facilities, referred to as federal-aid highways, make up about 1 mil ion of the roughly 4 mil ion miles of
public roads in the United States. Within the federal-aid highways is a category of designated major
highways referred to as the National Highway System (NHS), which includes about 220,000 miles of
highways. Within the NHS are the Interstate System highways, which make up just under 49,000 miles of
highways.
Toll Agreements
For many years, federal law required that before the Secretary of Transportation could authorize tolling of
a federal-aid highway, bridge, or tunnel, the tolling authority with jurisdiction over the facility had to
enter into an agreement with the Secretary. Toll agreements general y included such provisions as a
description of the facility, a commitment on the use of revenues, and a provision on federal access to
records. This requirement was eliminated in FY2013 by the Moving Ahead for Progress in the 21st
Century Act (MAP-21; P.L. 112-141).
The Moving Forward Act would reinstate a requirement that DOT and the state or local agency with
jurisdiction over the relevant federal-aid highway, bridge, or tunnel reach an agreement regarding the
implementation of tolls. This requirement would apply to any new tolling of a federal-aid highway. It
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would not apply to changes in toll rates, which are not subject to federal regulation. In addition, the bil
would require that the public authority certify no-cost access for public transportation and over-the-road
buses (mostly privately owned by intercity bus companies) as wel as regional interoperability of
electronic toll collection (such as between E-ZPass in the Northeast and SunPass in Florida). Under H.R.
2, a toll agreement would also have to consider the anticipated impact of the proposed collection of tolls
on congestion, air quality, public transportation, and non-tolled roads in the corridor; environmental
justice; freight movement; and business.
“Major Federal Action” Under NEPA
H.R. 2 §1110(a) would require that approval by the Secretary of an agreement to toll be considered a
major federal action (40 C.F.R. §1508.18) under the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et. seq.). This means that approval by the Secretary would make the conversion to tolling
subject to an environmental review process similar to that applied to highway construction projects.
Tolling of Interstate System Highway Lanes Under Congestion Pricing
The legal ability to collect a toll is contingent on exceptions to the 1958 “Freedom from Tolls” provision
of 23 U.S.C. §301, which broadly prohibited tolls on any highway constructed under provisions of Title
23. The exceptions are set forth in 23 U.S.C. §129. In general, current law al ows tolls to be levied on
federal-aid highways, bridges, and tunnels, other than those incorporated into the Interstate Highway
system, if they are reconstructed, replaced, or expanded. No specific federal approval is required as long
as the tolled facility is in compliance with Section 129. New Interstate routes and added Interstate lane
capacity may be tolled. Over the years, the exceptions have expanded to the point that toll-free surface
lanes on Interstate System highways are the only federal-aid highways that may not be tolled. Even then,
those Interstate Highway lanes may be tolled under two pilot programs, the Interstate System
Reconstruction and Rehabilitation Pilot Program (ISRRP) and the Value Pricing Pilot Program (VPPP).
The Moving Forward Act would repeal the ISRRP and sunset the VPPP. However, congestion pricing
would be “mainstreamed” by making it al owable under 23 U.S.C. §129 on any National Highway
System highway (including Interstate System highways). Congestion pricing utilizes electronic tolling to
manage congestion by varying tolls by time of day or by the level of traffic in a tolled corridor or entering
a cordoned area. Under the act, conversions to congestion pricing would be required to comply with the
toll agreement requirements set forth in the act. Also, the responsible state or local agency would have to
insure that improvements in the operation of the cordon or corridor are maintained through performance
monitoring and take action to resolve performance degradation as defined in the act.
Because the Interstate System highways are part of the National Highway System, it appears that
conversion of existing Interstate System highway lanes to tolling would be al owed under the congestion
pricing provision of Section 1110 of the Moving Forward Act. This, in effect, could make roads on the
National Highway System that have sufficient traffic to sustain tolls, including Interstate System
highways, eligible for conversion to tolling under the act’s congestion pricing provision. Section 1110
would also provide a means of converting a highway, bridge, or tunnel on the National Highway System
to tolling without reconstruction, replacement, or expansion.

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Author Information

Robert S. Kirk

Specialist in Transportation Policy

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