23 U.S.C. § 166 — HOV facilities

Page 283 TITLE 23—HIGHWAYS § 166 Editorial Notes REFERENCES IN TEXT Section 215 as in effect on the day before the enact- ment of this section and section 215 of this title as in effect on the day before the date of enactment of this subsection, referred to in subsec. (c)(5)(A), (D), probably mean section 215 of this title as in effect on the day be- fore the date of enactment of Pub. L. 112–141, which was approved July 6, 2012, and which amended this section generally and repealed section 215. AMENDMENTS 2021—Subsec. (a). Pub. L. 117–58, § 11126(1), added pars. (1) and (2) and struck out former pars. (1) and (2) which read as follows: ‘‘(1) $158,000,000 shall be for the Puerto Rico highway program under subsection (b); and ‘‘(2) $42,000,000 shall be for the territorial highway program under subsection (c).’’ Subsec. (b)(2)(C)(iii). Pub. L. 117–58, § 11126(2), inserted ‘‘and preventative maintenance on the National High- way System’’ after ‘‘chapter 1’’. Subsec. (c)(7). Pub. L. 117–58, § 11126(3), substituted ‘‘paragraphs (1), (2), (3), and (5) of section 133(c) and sec- tion 133(b)(13)’’ for ‘‘paragraphs (1) through (4) of sec- tion 133(c) and section 133(b)(12)’’. 2015—Subsec. (a)(1). Pub. L. 114–94, § 1115(1), sub- stituted ‘‘$158,000,000’’ for ‘‘$150,000,000’’. Subsec. (a)(2). Pub. L. 114–94, § 1115(2), substituted ‘‘$42,000,000’’ for ‘‘$40,000,000’’. Subsecs. (b)(2)(A)(ii), (c)(6)(A)(i). Pub. L. 114–94, § 1109(c)(5), substituted ‘‘surface transportation block grant program’’ for ‘‘surface transportation program’’. Subsec. (c)(7). Pub. L. 114–94, § 1446(a)(11), substituted ‘‘paragraphs (1) through (4) of section 133(c) and section 133(b)(12)’’ for ‘‘paragraphs (2), (4), (7), (8), (14), and (19) of section 133(b)’’. 2012—Pub. L. 112–141 amended section generally. Prior to amendment, section related to Puerto Rico highway program. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title. EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 2012 AMENDMENT Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effec- tive and Termination Dates of 2012 Amendment note under section 101 of this title. § 166. HOV facilities (a) IN GENERAL.— (1) AUTHORITY OF PUBLIC AUTHORITIES.—A public authority that has jurisdiction over the operation of a HOV facility shall establish the occupancy requirements of vehicles operating on the facility. (2) OCCUPANCY REQUIREMENT.—Except as oth- erwise provided by this section, no fewer than two occupants per vehicle may be required for use of a HOV facility. (b) EXCEPTIONS.— (1) IN GENERAL.—Notwithstanding the occu- pancy requirement of subsection (a)(2), the ex- ceptions in paragraphs (2) through (5) shall apply with respect to a public authority oper- ating a HOV facility. (2) MOTORCYCLES AND BICYCLES.— (A) IN GENERAL.—Subject to subparagraph (B), the public authority shall allow motor- cycles and bicycles to use the HOV facility. (B) SAFETY EXCEPTION.— (i) IN GENERAL.—A public authority may restrict use of the HOV facility by motor- cycles or bicycles (or both) if the author- ity certifies to the Secretary that such use would create a safety hazard and the Sec- retary accepts the certification. (ii) ACCEPTANCE OF CERTIFICATION.—The Secretary may accept a certification under this subparagraph only after the Secretary publishes notice of the certification in the Federal Register and provides an oppor- tunity for public comment. (3) PUBLIC TRANSPORTATION VEHICLES.—The public authority may allow public transpor- tation vehicles to use the HOV facility if the authority— (A) establishes requirements for clearly identifying the vehicles; (B) establishes procedures for enforcing the restrictions on the use of the facility by the vehicles; and (C) provides equal access under the same rates, terms, and conditions for all public transportation vehicles and over-the-road buses serving the public. (4) HIGH OCCUPANCY TOLL VEHICLES.—The public authority may allow vehicles not other- wise exempt pursuant to this subsection to use the HOV facility if the operators of the vehi- cles pay a toll charged by the authority for use of the facility and the authority— (A) establishes a program that addresses how motorists can enroll and participate in the toll program; (B) develops, manages, and maintains a system that will automatically collect the toll; and (C) establishes policies and procedures to— (i) manage the demand to use the facil- ity by varying the toll amount that is charged; (ii) enforce violations of use of the facil- ity; and (iii) ensure that over-the-road buses serving the public are provided access to the facility under the same rates, terms, and conditions as public transportation buses. (5) LOW EMISSION AND ENERGY-EFFICIENT VEHI- CLES.— (A) SPECIAL RULE.—Before September 30, 2025, if a public authority establishes proce- dures for enforcing the restrictions on the use of a HOV facility by vehicles described in clauses (i) and (ii), the public authority may allow the use of the HOV facility by— (i) alternative fuel vehicles; and (ii) any motor vehicle described in sec- tion 30D(d)(1) of the Internal Revenue Code of 1986. (B) OTHER LOW EMISSION AND ENERGY-EFFI- CIENT VEHICLES.—Before September 30, 2019, Page 284 TITLE 23—HIGHWAYS § 166 the public authority may allow vehicles cer- tified as low emission and energy-efficient vehicles under subsection (e), and labeled in accordance with subsection (e), to use the HOV facility if the operators of the vehicles pay a toll charged by the authority for use of the facility and the authority— (i) establishes a program that addresses the selection of vehicles under this para- graph; and (ii) establishes procedures for enforcing the restrictions on the use of the facility by the vehicles. (C) AMOUNT OF TOLLS.—Under this para- graph, a public authority may charge no toll or may charge a toll that is less than or equal to tolls charged under paragraph (4). (6) BLOOD TRANSPORT VEHICLES.—The public authority may allow blood transport vehicles that are transporting blood between a collec- tion point and a hospital or storage center to use the HOV facility if the public authority es- tablishes requirements for clearly identifying such vehicles. (c) REQUIREMENTS APPLICABLE TO TOLLS.— (1) IN GENERAL.—Notwithstanding section 301, tolls may be charged under paragraphs (4) and (5) of subsection (b), subject to the re- quirements of section 129. (2) TOLL REVENUE.—Toll revenue collected under this section is subject to the require- ments of section 129(a)(3). (d) HOV FACILITY MANAGEMENT, OPERATION, MONITORING, AND ENFORCEMENT.— (1) IN GENERAL.—A public authority that al- lows vehicles to use a HOV facility under para- graph (4) or (5) of subsection (b) shall submit to the Secretary a report demonstrating that the facility is not already degraded, and that the presence of the vehicles will not cause the facility to become degraded, and certify to the Secretary that the authority will carry out the following responsibilities with respect to the facility: (A) Establishing, managing, and sup- porting a performance monitoring, evalua- tion, and reporting program for the facility that provides for continuous monitoring, as- sessment, and reporting on the impacts that the vehicles may have on the operation of the facility and adjacent highways and sub- mitting to the Secretary annual reports of those impacts. (B) Establishing, managing, and sup- porting an enforcement program that en- sures that the facility is being operated in accordance with the requirements of this section. (C) Limiting or discontinuing the use of the facility by the vehicles whenever the op- eration of the facility is degraded. (D) MAINTENANCE OF OPERATING PERFORM- ANCE.— (i) SUBMISSION OF PLAN.—Not later than 180 days after the date on which a facility is degraded under paragraph (2), the public authority with jurisdiction over the facil- ity shall submit to the Secretary for ap- proval a plan that details the actions the public authority will take to make signifi- cant progress toward bringing the facility into compliance with the minimum aver- age operating speed performance standard through changes to the operation of the fa- cility, including— (I) increasing the occupancy require- ment for HOV lanes; (II) varying the toll charged to vehi- cles allowed under subsection (b) to re- duce demand; (III) discontinuing allowing non-HOV vehicles to use HOV lanes under sub- section (b); or (IV) increasing the available capacity of the HOV facility. (ii) NOTICE OF APPROVAL OR DIS- APPROVAL.—Not later than 60 days after the date of receipt of a plan under clause (i), the Secretary shall provide to the pub- lic authority a written notice indicating whether the Secretary has approved or dis- approved the plan based on a determina- tion of whether the implementation of the plan will make significant progress toward bringing the HOV facility into compliance with the minimum average operating speed performance standard. (iii) ANNUAL PROGRESS UPDATES.—Until the date on which the Secretary deter- mines that the public authority has brought the HOV facility into compliance with this subsection, the public authority shall submit annual updates that de- scribe— (I) the actions taken to bring the HOV facility into compliance; and (II) the progress made by those ac- tions. (E) COMPLIANCE.—If the public authority fails to bring a facility into compliance under subparagraph (D), the Secretary shall subject the public authority to appropriate program sanctions under section 1.36 of title 23, Code of Federal Regulations (or successor regulations), until the performance is no longer degraded. (F) WAIVER.— (i) IN GENERAL.—Upon the request of a public authority, the Secretary may waive the compliance requirements of subpara- graph (E), if the Secretary determines that— (I) the waiver is in the best interest of the traveling public; (II) the public authority is meeting the conditions under subparagraph (D); and (III) the public authority has made a good faith effort to improve the perform- ance of the facility. (ii) CONDITION.—The Secretary may re- quire, as a condition of providing a waiver under this subparagraph, that a public au- thority take additional actions, as deter- mined by the Secretary, to maximize the operating speed performance of the facil- ity, even if such performance is below the level set under paragraph (2). (2) DEGRADED FACILITY.— Page 285 TITLE 23—HIGHWAYS § 166 (A) DEFINITION OF MINIMUM AVERAGE OPER- ATING SPEED.—In this paragraph, the term ‘‘minimum average operating speed’’ means— (i) 45 miles per hour, in the case of a HOV facility with a speed limit of 50 miles per hour or greater; and (ii) not more than 10 miles per hour below the speed limit, in the case of a HOV facility with a speed limit of less than 50 miles per hour. (B) STANDARD FOR DETERMINING DEGRADED FACILITY.—For purposes of paragraph (1), the operation of a HOV facility shall be consid- ered to be degraded if vehicles operating on the facility are failing to maintain a min- imum average operating speed 90 percent of the time over a consecutive 180-day period during morning or evening weekday peak hour periods (or both). (C) MANAGEMENT OF LOW EMISSION AND EN- ERGY-EFFICIENT VEHICLES.—In managing the use of HOV lanes by low emission and en- ergy-efficient vehicles that do not meet ap- plicable occupancy requirements, a public authority may increase the percentages de- scribed in subsection (f)(3)(B)(i). (e) CERTIFICATION OF LOW EMISSION AND EN- ERGY-EFFICIENT VEHICLES.—Not later than 180 days after the date of enactment of this section, the Administrator of the Environmental Protec- tion Agency shall— (1) issue a final rule establishing require- ments for certification of vehicles as low emis- sion and energy-efficient vehicles for purposes of this section and requirements for the label- ing of the vehicles; and (2) establish guidelines and procedures for making the vehicle comparisons and perform- ance calculations described in subsection (f)(3)(B), in accordance with section 32908(b) of title 49. (f) DEFINITIONS.—In this section, the following definitions apply: (1) ALTERNATIVE FUEL VEHICLE.—The term ‘‘alternative fuel vehicle’’ means a vehicle that is solely operating on— (A) methanol, denatured ethanol, or other alcohols; (B) a mixture containing at least 85 per- cent of methanol, denatured ethanol, and other alcohols by volume with gasoline or other fuels; (C) natural gas; (D) liquefied petroleum gas; (E) hydrogen; (F) coal derived liquid fuels; (G) fuels (except alcohol) derived from bio- logical materials; (H) electricity (including electricity from solar energy); or (I) any other fuel that the Secretary pre- scribes by regulation that is not substan- tially petroleum and that would yield sub- stantial energy security and environmental benefits, including fuels regulated under sec- tion 490 of title 10, Code of Federal Regula- tions (or successor regulations). (2) HOV FACILITY.—The term ‘‘HOV facility’’ means a high occupancy vehicle facility. (3) LOW EMISSION AND ENERGY-EFFICIENT VEHI- CLE.—The term ‘‘low emission and energy-effi- cient vehicle’’ means a vehicle that— (A) has been certified by the Adminis- trator as meeting the Tier II emission level established in regulations prescribed by the Administrator under section 202(i) of the Clean Air Act (42 U.S.C. 7521(i)) for that make and model year vehicle; and (B)(i) is certified by the Administrator of the Environmental Protection Agency, in consultation with the manufacturer, to have achieved not less than a 50-percent increase in city fuel economy or not less than a 25- percent increase in combined city-highway fuel economy (or such greater percentage of city or city-highway fuel economy as may be determined by a State under subsection (d)(2)(C)) relative to a comparable vehicle that is an internal combustion gasoline fueled vehicle (other than a vehicle that has propulsion energy from onboard hybrid sources); or (ii) is an alternative fuel vehicle. (4) OVER-THE-ROAD BUS.—The term ‘‘over- the-road bus’’ has the meaning given the term in section 301 of the Americans with Disabil- ities Act of 1990 (42 U.S.C. 12181). (5) PUBLIC AUTHORITY.—The term ‘‘public au- thority’’ as used with respect to a HOV facil- ity, means a State, interstate compact of States, public entity designated by a State, or local government having jurisdiction over the operation of the facility. (6) PUBLIC TRANSPORTATION VEHICLE.—The term ‘‘public transportation vehicle’’ means a vehicle that— (A) provides designated public transpor- tation (as defined in section 221 of the Amer- icans with Disabilities Act of 1990 (42 U.S.C. 12141) or provides public school transpor- tation (to and from public or private pri- mary, secondary, or tertiary schools); and (B)(i) is owned or operated by a public en- tity; (ii) is operated under a contract with a public entity; or (iii) is operated pursuant to a license by the Secretary or a public authority to pro- vide motorbus or school vehicle transpor- tation services to the public. (g) CONSULTATION OF MPO.—If a HOV facility charging tolls under paragraph (4) or (5) of sub- section (b) is on the Interstate System and lo- cated in a metropolitan planning area estab- lished in accordance with section 134, the public authority shall consult with the metropolitan planning organization for the area concerning the placement and amount of tolls on the facil- ity. (Added Pub. L. 109–59, title I, § 1121(a), Aug. 10, 2005, 119 Stat. 1192; amended Pub. L. 110–244, title I, § 101(p), June 6, 2008, 122 Stat. 1576; Pub. L. 112–141, div. A, title I, § 1514, July 6, 2012, 126 Stat. 572; Pub. L. 114–94, div. A, title I, § 1411(b), Dec. 4, 2015, 129 Stat. 1413; Pub. L. 117–58, div. A, title I, §§ 11525(k), 11527, Nov. 15, 2021, 135 Stat. 607, 610.) Page 286 TITLE 23—HIGHWAYS § 167 Editorial Notes REFERENCES IN TEXT Section 30D(d)(1) of the Internal Revenue Code of 1986, referred to in subsec. (b)(5)(A)(ii), is classified to section 30D(d)(1) of Title 26, Internal Revenue Code. The date of enactment of this section, referred to in subsec. (e), is the date of enactment of Pub. L. 109–59, which was approved Aug. 10, 2005. AMENDMENTS 2021—Subsec. (a)(1). Pub. L. 117–58, § 11525(k), made technical amendment to style of par. heading. Subsec. (b)(6). Pub. L. 117–58, § 11527, added par. (6). 2015—Pub. L. 114–94, § 1411(b)(1), substituted ‘‘the au- thority’’ for ‘‘the agency’’ wherever appearing. Subsec. (a)(1). Pub. L. 114–94, § 1411(b)(2), substituted ‘‘authority of public authorities’’ for ‘‘Authority of state agencies’’ in heading and ‘‘public authority’’ for ‘‘State agency’’ in text. Subsec. (b). Pub. L. 114–94, § 1411(b)(3)(A), substituted ‘‘public authority’’ for ‘‘State agency’’ wherever ap- pearing. Subsec. (b)(3)(C). Pub. L. 114–94, § 1411(b)(3)(B), added subpar. (C). Subsec. (b)(4)(C)(iii). Pub. L. 114–94, § 1411(b)(3)(C), added cl. (iii). Subsec. (b)(5)(A). Pub. L. 114–94, § 1411(b)(3)(D)(i), added subpar. (A) and struck out former subpar. (A). Prior to amendment, text read as follows: ‘‘Before Sep- tember 30, 2017, the State agency may allow vehicles that are certified as inherently low-emission vehicles pursuant to section 88.311–93 of title 40, Code of Federal Regulations (or successor regulations), and are labeled in accordance with section 88.312–93 of such title (or successor regulations), to use the HOV facility if the agency establishes procedures for enforcing the restric- tions on the use of the facility by the vehicles.’’ Subsec. (b)(5)(B). Pub. L. 114–94, § 1411(b)(3)(D)(ii), sub- stituted ‘‘2019’’ for ‘‘2017’’ in introductory provisions. Subsec. (c)(1). Pub. L. 114–94, § 1411(b)(4)(A), added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: ‘‘Tolls may be charged under para- graphs (4) and (5) of subsection (b) notwithstanding sec- tion 301 and, except as provided in paragraphs (2) and (3), subject to the requirements of section 129.’’ Subsec. (c)(2), (3). Pub. L. 114–94, § 1411(b)(4)(B), redes- ignated par. (3) as (2) and struck out former par. (2). Prior to amendment, text of par. (2) read as follows: ‘‘Notwithstanding section 129, tolls may be charged under paragraphs (4) and (5) of subsection (b) on a HOV facility on the Interstate System.’’ Subsec. (d)(1). Pub. L. 114–94, § 1411(b)(5)(A), sub- stituted ‘‘public authority’’ for ‘‘State agency’’ in in- troductory provisions. Subsec. (d)(1)(D) to (F). Pub. L. 114–94, § 1411(b)(5)(B), added subpars. (D) to (F) and struck out former sub- pars. (D) and (E), which related to maintenance of oper- ating performance and compliance, respectively. Subsec. (d)(2)(C). Pub. L. 114–94, § 1411(b)(5)(A), sub- stituted ‘‘public authority’’ for ‘‘State agency’’. Subsec. (f)(1). Pub. L. 114–94, § 1411(b)(6)(A), inserted ‘‘solely’’ before ‘‘operating’’ in introductory provisions. Subsec. (f)(4). Pub. L. 114–94, § 1411(b)(6)(E), added par. (4). Former par. (4) redesignated (6). Subsec. (f)(4)(B)(iii). Pub. L. 114–94, § 1411(b)(6)(B), sub- stituted ‘‘public authority’’ for ‘‘State agency’’. Subsec. (f)(5). Pub. L. 114–94, § 1411(b)(6)(C), (E), added par. (5) and struck out former par. (5). Prior to amend- ment, text read as follows: ‘‘(A) IN GENERAL.—The term ‘State agency’, as used with respect to a HOV facility, means an agency of a State or local government having jurisdiction over the operation of the facility. ‘‘(B) INCLUSION.—The term ‘State agency’ includes a State transportation department.’’ Subsec. (f)(6). Pub. L. 114–94, § 1411(b)(6)(D), redesig- nated par. (4) as (6). Subsec. (g). Pub. L. 114–94, § 1411(b)(7), added subsec. (g). 2012—Subsec. (b)(5)(A), (B). Pub. L. 112–141, § 1514(1)(A), (B), substituted ‘‘2017’’ for ‘‘2009’’. Subsec. (b)(5)(C). Pub. L. 112–141, § 1514(1)(C), sub- stituted ‘‘this paragraph’’ for ‘‘subparagraph (B)’’ and inserted ‘‘or equal to’’ after ‘‘less than’’. Subsec. (c)(3). Pub. L. 112–141, § 1514(2), added par. (3) and struck out former par. (3). Prior to amendment, text read as follows: ‘‘If a State agency makes a certifi- cation under section 129(a)(3) with respect to toll reve- nues collected under paragraphs (4) and (5) of sub- section (b), the State, in the use of toll revenues under that sentence, shall give priority consideration to projects for developing alternatives to single occu- pancy vehicle travel and projects for improving high- way safety.’’ Subsec. (d)(1). Pub. L. 112–141, § 1514(3)(A), in introduc- tory provisions, substituted ‘‘shall submit to the Sec- retary a report demonstrating that the facility is not already degraded, and that the presence of the vehicles will not cause the facility to become degraded, and cer- tify’’ for ‘‘in a fiscal year shall certify’’ and struck out ‘‘in the fiscal year’’ before the colon. Subsec. (d)(1)(A). Pub. L. 112–141, § 1514(3)(B), inserted ‘‘and submitting to the Secretary annual reports of those impacts’’ before period at end. Subsec. (d)(1)(C). Pub. L. 112–141, § 1514(3)(C), sub- stituted ‘‘whenever the operation of the facility is de- graded’’ for ‘‘if the presence of the vehicles has de- graded the operation of the facility’’. Subsec. (d)(1)(D), (E). Pub. L. 112–141, § 1514(3)(D), added subpars. (D) and (E). 2008—Subsec. (b)(5)(C). Pub. L. 110–244 substituted ‘‘paragraph (4)’’ for ‘‘paragraph (3)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title. EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 2012 AMENDMENT Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effec- tive and Termination Dates of 2012 Amendment note under section 101 of this title. § 167. National highway freight program (a) IN GENERAL.— (1) POLICY.—It is the policy of the United States to improve the condition and perform- ance of the National Highway Freight Net- work established under this section to ensure that the Network provides the foundation for the United States to compete in the global economy and achieve the goals described in subsection (b). (2) ESTABLISHMENT.—In support of the goals described in subsection (b), the Administrator of the Federal Highway Administration shall establish a national highway freight program in accordance with this section to improve the efficient movement of freight on the National Highway Freight Network. (b) GOALS.—The goals of the national highway freight program are— (1) to invest in infrastructure improvements and to implement operational improvements on the highways of the United States that—