Federal Jurisdiction on the Massachusetts Turnpike
Subsequent to the inclusion of 2,100 miles of existing toll roads to the Interstate System in 1957, the Bureau Public Roads (BPR) (now Federal Highway Administration (FHWA)) issued guidance on the jurisdiction ofthe toll road authorities. That guidance was in the form ofan Instructional Memorandum (IM) 20-5-67 titled "Jurisdiction of Toll Road Authorities to make Modifications in Toll Roads Designated as Part of the Interstate System."
The 1967 IM states that when Interstate designated toll roads are constructed wholly by funds other than Federal-aid funds administered by the BPR, such roads remain under the jurisdiction of the toll road authorities. What that meant was that the toll road authorities could make modifications to such facilities without approval of the BPR. Such modifications include the use of right-of-way (ROW) for non-highway purposes, use of airspace, installation of crossing by utilities, changes in access control, addition of ramps and/or interchanges or disposition of ROW.
However, the IM does state that it is expected that there will be appropriate procedures in place to assure that proposed changes or alterations of the toll road facility meet applicable AASHO (now AASHTO) policies and standards established for the Interstate System.
For the last 36 years, the principles set forth in this IM have been the basis of BPR's and the FHWA's policy for determining our authority and responsibilities on toll road projects.
There are three questions that need to be answered to clarify the Federal jurisdiction on toll roads:
- Are all the rules, regulations, policies, and standards established for the Interstate System applicable to toll roads that have been made part of the system?
All the geometric and design rules, regulations, policies and standards established for the Interstate System are applicable to toll roads on the Interstate System irrespective of how they were incorporated into the System or their Federal-aid funding status. This includes the Manual on Uniform Traffic Control Devices. Note that the outdoor advertising controls outside the ROW also apply pursuant to the Highway Beautification Act.
- What approval authority does the FHWA have over toll roads?
The FHWA's approval authority (as well as the application of all other FHWA rules, regulations, policies, and standards) hinges on whether or not Federal-aid funding is involved. As established in the 1967 1M and as maintained by BPR and the FHWA for the past 36 years, Interstate System designated toll roads constructed without Federal-aid funds remain under the jurisdiction of the toll road authorities. Retention ofcommercial activities on toll road service plazas (rest areas) is specifically allowed by 23 U.S.C 111(a) even after a toll road on the Interstate System was converted to a freeway.
If no Federal funds are involved, the FHWA approvals are not required for modifications to the toll road. Only for those Interstate toll roads, or segments, on which Federal-aid funds have been used or a project on which Federal-aid funds will be used, are all the FHWA approval authorities, as prescribed for the Interstate System, applicable. Exception to this generally "hands off" policy is in the FHWA policy for approval of new access points (interchanges). That policy states that if the toll road was added to the Interstate System under 23 U.S.c. 139 (now 23 U.S.C. 103(c)(4)(A)), then FHWA approval for new interchanges is required irrespective of funding.*
The FHWA Headquarters records indicate that the only portion of I-90 added to the Interstate System under former 23 U.S.C 139 [now 23 U.S.c. 103(c)(4)] is a 2.9 mile segment extending from the eastern side of the Allston - Brighton interchange (MP 131.5) to the I-90 interchange with 1-93 (MP 134.4).
* (Note: This was added to the "Interstate access policy" in 1998. It was included with the intent of protecting the safety and capacity of the newly designated segment of the Interstate and to be consistent with free roads added to the System under the same provision. It is an inconsistency in FHWA 's policy on toll road Interstates in that, in all other cases, the FHWA's approval authority is applicable only when federal funds are involved. Because there are not very many sections ofInterstate that, like the part of1-90 specified above, fall into this category, the issue has not come up before. For the sake of consistency in our policies, the requirement may be rescinded in the future by issuing a modified policy statement)
- What sanctions does the FHWA have to compel compliance on sections of toll roads on which Federal-aid funds have not been used?
The original Section 129 legislation stated that when incorporated into the Interstate System a toll road is expected to" ...meet the standards adopted for the improvement of projects located on the Interstate System..." No specific sanctions for not meeting those standards are in the past or current law or regulations, As stated in IM 20-5-67: "However, it is expected that State highway departments will establish appropriate procedures to assure that proposed changes or alterations of the toll road facility will meet applicable AASHO policies and standards established for the Interstate System and, therefore, be within the spirit of the understanding between the State and Public Roads in approving a toll road as part of the Interstate System."
Present law, the regulations, and our past policy and actions do not support imposition of FHWA approval authority on non-federally funded toll road programs or projects. However, the absence of a project or program-based approval authority does not diminish the requirement that toll roads that are a part of the Interstate System must comply with the geometric and design rules and regulations applicable to the Interstate System.
The intent of the FHWA policy is to obtain compliance by establishing a relationship of cooperation and coordination with the toll road authority, if separate from the State department of transportation (DOT), or with the appropriate staff at the State DOT if the toll road is under its jurisdiction. Although there is some basis for sanctions in case of non-compliance, as discussed below, those sanctions can be very severe and difficult to impose. Therefore, the best approach is for the Division Office to work with the toll authorities to make sure the basic design standards of the Interstate System are not compromised.
Although we cannot ensure compliance through decision-by-decision approvals, there are provisions in the law and regulations that are available to obtain compliance. "Section 315 of 23 U.S.C. specifically gives the Secretary of Transportation authority to prescribe and promulgate all needful rules and regulations for the carrying out of the provisions of this title". One of the regulations so promulgated under this authority is 23 C.F.R. 1.36,which provides that if the Administrator determines that a State is not in compliance with Federal laws or regulations with regard to highway projects, he may "...withhold approval of further projects in the State, and take such other actions that he deems appropriate under the circumstances, until compliance or remedial action has been accomplished by the State to the satisfaction of the Administrator." This makes available to the Administrator a wide range ofpossible sanctions, from very specific or "targeted" sanctions to broad statewide sanctions. Sanctions could include withholding approval of further projects, withholding of Federal funds or removal of the route from the Interstate System [23 USC 103(c)(3)].
/s/ signed by
Dwight A. Horne 07/12/04 for
King W. Gee
Associate Administrator for Infrastructure