- Briefing Room
Updated October 2018
Question 1: Do all uses of Federal-aid highway funds trigger the restrictions and requirements of 23 U.S.C. 301 and 23 U.S.C. 129(a)?
Answer 1: No. The requirements of 23 U.S.C. 301 and 23 U.S.C. 129(a) apply to the use of Federal-aid funds for construction (as defined at 23 U.S.C. 101(a)(4)) on tolled highways, bridges, and tunnels, including the use of emergency relief funds for repairs to toll facilities (see 23 CFR 668.109(b)(9)). The use of Federal-aid funds for non-construction-related activities (such as inspections in accordance with the National Bridge Inspection Standards) would not trigger these requirements.
Question 2: May the restrictions and requirements of 23 U.S.C. 301 and 23 U.S.C. 129(a) be removed from a highway, bridge, or tunnel by repaying the Federal-aid funds that were used in its construction?
Answer 2: No. The FHWA cannot accept a repayment of Federal-aid funds that have been previously expended on a facility for the purpose of relieving the State DOT or other public authority from compliance with 23 U.S.C. 301 and 23 U.S.C. 129(a). Such an action would require specific authorization from Congress in legislation.
[Updated] Question 3: May tolling be allowed under 23 U.S.C. 129 if the activity that authorizes tolling is funded without Federal assistance?
Answer 3: Yes. A State may elect to fund a project qualified to be tolled under 23 U.S.C. 129 with or without Federal-aid assistance, and the absence of Federal-aid does not restrict the State's eligibility to use 129(a) authorities to toll a Federal-aid highway or bridge owned by the State.
Question 4: What is "initial construction" under 23 U.S.C. 129(a)?
Answer 4: Initial construction is defined at 23 U.S.C. 129(a)(10)(B)(i) as the construction of a highway, bridge, tunnel, or other facility at any time before it is open to traffic. Initial construction does not include any improvement to a highway, bridge, tunnel or other facility after it is open to traffic. 23 U.S.C. 129(a)(10)(B)(ii).
Question 5: May all lanes of an existing toll-free non-Interstate highway be converted into a toll facility under 23 U.S.C. 129(a) if it is reconstructed?
Answer 5: Yes. Under 23 U.S.C. 129(a)(1)(F), an existing toll-free non-Interstate highway may be converted into a toll facility as part of a project to reconstruct the existing facility.
Question 6: May all lanes of an existing toll-free Interstate highway be converted into a toll facility under 23 U.S.C. 129(a) if it is reconstructed?
Answer 6: No. Such authority would only be available through the Interstate System Reconstruction and Rehabilitation Pilot Program. For more information, see: https://www.fhwa.dot.gov/ipd/tolling_and_pricing/tolling_pricing/interstate_rr.aspx.
Question 7: What activities constitute reconstruction of a highway for tolling eligibility purposes under 23 U.S.C. 129(a)(1)(F)?
Answer 7: Highway reconstruction includes major improvements to pavements or interchanges. Pavement reconstruction includes the replacement of the entire existing pavement structure by the placement of the equivalent or increased pavement structure. Highway reconstruction also includes the reconstruction of interchanges or acquisition of access control coupled with construction of interchanges, with or without the reconstruction of the existing pavement.
Question 8: Is tolling eligibility under 23 U.S.C. 129(a)(1)(F) limited only to those highway segments that are physically reconstructed?
Answer 8: No. The limits of tolling on an existing toll free highway that is converted into a toll facility in conjunction with a reconstruction project may be based on the consideration of the extent to which the reconstructed segments benefit users of other non-reconstructed segments of the facility by affecting the nature, use, and function of the facility as a whole, and whether the toll limits have logical termini from the perspective of the users of the toll facility.
Question 9: May an existing toll-free bridge or tunnel be converted into a toll facility under 23 U.S.C. 129(a) if it is reconstructed or replaced?
Answer 9: Yes. Under 23 U.S.C. 129(a)(1)(E), an existing toll-free bridge or tunnel may be converted into a toll facility as part of a project to reconstruct or replace the existing facility. This authority applies to bridges and tunnels that are located both on and off the Interstate System.
Question 10: What constitutes reconstruction or replacement of a toll-free bridge or tunnel for tolling eligibility purposes under 23 U.S.C. 129(a)(1)(E)?
Answer 10: Bridge or tunnel reconstruction involves the major work required to improve the structural integrity of the structure, correct major safety defects, or improve the functional operation of the facility. It includes improvements such as deck or superstructure replacement; replacement of tunnel liners; strengthening structures to meet current design loads; and increasing vertical clearance. Bridge or tunnel replacement involves the total replacement of a bridge or tunnel with a new facility constructed in the same general traffic corridor.
Question 11: When may toll collection be initiated on an existing toll-free highway, bridge, or tunnel that is being converted to a toll facility under 23 U.S.C. 129(a)(1)(E) or 23 U.S.C. 129(a)(1)(F)?
Answer 11: The earliest the FHWA considers an existing free facility to be eligible for tolling is the point at which the contract has been awarded for the physical construction activities that render the facility eligible for conversion to a toll facility. In the case of a bridge replacement where the existing structure will remain in place throughout the construction of the new bridge, tolling may occur on the existing structure whenever the contract for any of the physical construction activities for the replacement bridge is awarded. In the case where a design-build contract or public-private agreement has been awarded prior to the completion of the environmental process, the earliest the FHWA considers an existing free facility to be eligible for tolling is the point at which a notice to proceed for the physical construction has been issued or where the design-builder otherwise becomes contractually obligated to accomplish the physical construction activities of the project.
Question 12: May new lanes added to an existing toll-free highway, bridge, or tunnel on the Interstate System be tolled under 23 U.S.C. 129(a)?
Answer 12: Yes. Under 23 U.S.C. 129(a)(1)(C), a new lane that is to be initially constructed may be tolled so long as the total number of toll-free non-HOV lanes, excluding auxiliary lanes, after construction is not less than the number of toll-free non-HOV lanes, excluding auxiliary lanes, before construction.
For improvements involving lanes added to bridges or tunnels on the Interstate System, note that if the project also includes the reconstruction or replacement of the existing lanes in addition to capacity expansion, then the entire facility may be tolled pursuant to 23 U.S.C. 129(a)(1)(E).
Question 13: May new lanes added to an existing toll-free non-Interstate highway, bridge, or tunnel be tolled under 23 U.S.C. 129(a)?
Answer 13: Yes. Under 23 U.S.C. 129(a)(1)(B), a new lane that is to be initially constructed may be tolled so long as the total number of toll-free lanes, excluding auxiliary lanes, after construction is not less than the number of toll-free lanes, excluding auxiliary lanes, before construction.
Note that if the improvement project also includes the reconstruction or replacement of the existing lanes in addition to capacity expansion, then the entire facility may be tolled pursuant to 23 U.S.C. 129(a)(1)(E) (for bridges and tunnels) or 23 U.S.C. 129(a)(1)(F) (for highways).
Question 14: What is an auxiliary lane?
Answer 14: The FHWA deems the term "auxiliary lane," for purposes of 23 U.S.C. 129(a), to have the same meaning as in the American Association of State Highway and Transportation Officials (AASHTO) Policy on Geometric Design of Highways and Streets, 2004, (commonly referred to as the "Green Book"). Under the Green Book, an auxiliary lane is defined as the portion of the roadway adjoining the traveled way for speed change, turning, storage for turning, weaving, truck climbing, and other purposes supplementary to through-traffic movement.
Question 15: What are the limitations that apply to the use of toll revenue that is collected from the operation of a toll facility that is subject to the requirements of 23 U.S.C. 129(a)?
Answer 15: Whenever a State DOT or other public authority tolls a highway, bridge or tunnel pursuant to the legal authority under either 23 U.S.C. 129(a) or 166, the State DOT or other public authority must use the toll revenue collected from the operation of the facility only for the limited prescribed uses that are specified at 23 U.S.C. 129(a)(3). These uses are as follows:
- Debt service with respect to the projects on or for which the tolls are authorized, including funding of reasonable reserves and debt service on refinancing;
- A reasonable return on investment of any private person financing the project, as determined by the State or interstate compact of States concerned;
- Any costs necessary for the improvement and proper operation and maintenance of the toll facility, including reconstruction, resurfacing, restoration, and rehabilitation;
- If the toll facility is subject to a public-private partnership agreement, payments that the party holding the right to toll revenues owes to the other party under the public-private partnership agreement; and
- If the public authority certifies annually that the tolled facility is being adequately maintained, any other purpose for which Federal funds may be obligated by a State under title 23, United States Code.
Question 16: May toll revenue be used for transit purposes under 23 U.S.C. 129(a)(3)?
Answer 16: Yes. If the public authority certifies annually that the tolled facility is being adequately maintained, toll revenue may be used to fund transit projects that are eligible for assistance under title 23, United States Code, which generally include the capital costs of transit projects eligible for assistance under chapter 53 of title 49, United States Code.
Question 17: Must the State DOT or relevant public authority conduct audits to ensure compliance with 23 U.S.C. 129(a)?
Answer 17: Yes. Under 23 U.S.C. 129(a)(3)(B), a public authority with jurisdiction over a toll facility must conduct, or have an independent auditor conduct, an annual audit of the toll facility records to verify the facility is being adequately maintained and that the authority is in compliance with the toll revenue use restrictions that are prescribed in Federal law. The relevant public authority must report the result of such audits to the FHWA.
Question 18: Must a toll agreement be executed prior to the imposition of tolls or the authorization of Federal funds to a toll project under 23 U.S.C. 129(a)?
Answer 18: No. Toll agreements are no longer required for toll authority or project authorization for a toll project. However, at the discretion of the State DOT or other relevant public authority, the FHWA Division Administrator may enter into a Tolling Eligibility Memorandum of Understanding defining the scope of the project and tolling strategy and signifying the FHWA's concurrence that the project meets the statutory requirements for toll authority eligibility.
Question 19: What is the maximum Federal share of funds that may be applied to construction projects under 23 U.S.C. 129(a)?
Answer 19: 23 U.S.C. 129(a)(6) specifies that the Federal share payable on account of any project advanced under the provisions of 23 U.S.C. 129(a) shall be a percentage determined by the State, but not exceeding 80 percent. Also, since Federal share for toll projects is determined under 23 U.S.C. 129 and not 23 U.S.C. 120, the sliding scale provisions of 23 U.S.C. 120 do not apply to toll projects.
Question 20: Is there any Federal role in approving toll rates on highways, bridges, or tunnels covered under the provisions of 23 U.S.C. 129(a)?
Answer 20: No. Decisions regarding the amount of the toll rates to be charged for the use of a toll facility are to be made solely by the public authority with jurisdiction over the facility or the private operator of the facility. These decisions require no review or input from the FHWA. Although 33 U.S.C. 508 requires that the toll rates for bridges constructed under the authority of the General Bridge Act of 1906, the General Bridge Act of 1946, or the International Bridge Act of 1972 be just and reasonable, the FHWA has no authority to review or to determine whether this standard is being met on such a facility. Other tolling policy decisions, such as whether tolls will be collected on one direction of travel or both, the classes of vehicles upon which tolls are charged, and any toll exemptions or discounts for designated users, are also at the discretion of the public authority or private operator.
[New] Question 21: Should pre-construction activities be eligible for Federal-aid if the State intends to fund construction without Federal assistance, even if the funding choice is made to avoid Federal requirements such as NEPA?
Answer 21: No. For purposes of implementing 23 U.S.C 129, the State needs to make the funding determination prior to incurring any costs in the project development process. Otherwise, projects constructed without Federal-aid during the construction phase, but that apply Federal-aid to pre-construction activities, may be challenged as constituting a federally-assisted toll project that failed to undergo NEPA and other required project reviews.
[New] Question 22: If a Federal-aid highway or bridge facility is eligible to be tolled under 23 U.S.C. 129, no Federal-aid is used for the toll-related project, and no other FHWA approval is required, such as an Interstate access change approval, or a design exception, is a FHWA NEPA review required?
Answer 22: Generally, no. Reliance on Section 129 for tolling authorization does not by itself trigger the need for FHWA to conduct NEPA review for the tolling project. The general rule is that major Federal actions, including commitments of Federal funds and other types of Federal approval decisions require NEPA review. If the State does not seek to use Federal-aid (or other Federal funds subject to Title 23 requirements, such as TIFIA credit assistance) and FHWA has no approval action to take (e.g., no Interstate access change approval or design exception approval), there is no requirement under current law to undertake a NEPA review. Other Federal requirements that apply and are typically addressed in the NEPA review, like Title VI, would continue to apply whether, or not NEPA requirements are applicable.
[New] Question 23: May a State open a project as toll-free and after opening the project as a toll-free facility, institute tolls?
Answer 23: Only if the State declares its intention to toll the facility prior to construction. Nevertheless, deferred tolling for any extended period after the facility is open to traffic is problematic and subject to challenge as violating 23 U.S.C. 301, as 23 U.S.C. 129 was designed to link the financing of the capital investment with the limited exception to the requirement that Federal-aid highways and bridges be free from tolls of all kinds.
If NEPA has been completed, but construction has not been completed, tolled alternatives may be developed and evaluated through a re-evaluation or supplemental environmental document.
[New] Question 24: Would widening a bridge, without full-deck replacement, constitute "reconstruction" for purposes of 23 U.S.C. 129?
Answer 24: It depends. Widening a bridge, i.e. adding lanes, could fall under two separate eligible project types under 23 U.S.C. 129. Under 23 U.S.C. 129 (a)(1)(C), improvements that increase the capacity of the bridge, including those on the Interstate, are eligible for tolling, but only the new capacity may be tolled (i.e. the added lanes). 23 U.S.C. 129 (a)(1)(E) defines an eligible project as reconstruction of a toll-free bridge and conversion to a toll facility, in which all lanes could be tolled.
[New] Question 25: Are there any requirements regarding how close the toll gantries must be to a bridge authorized for tolling under 23 U.S.C. 129?
Answer 25: No. There is no FHWA statute, regulation, guidance or policy that currently addresses this question. In general, toll gantries should be located on the toll facility or approaches to the toll facility. Locating toll gantries further removed from the bridge could create the risk of effectively tolling a Federal-aid highway that is not eligible to be tolled in violation of 23 U.S.C. 301 and 129. FHWA recognizes that in limited situations there may be unique circumstances that would warrant locating the gantries further removed from a toll facility like a bridge (for example, the lack of right-of way; elevation concerns; and safety and operational issues). The FHWA would consider the specific facts to determine if locating a toll gantry farther removed from the bridge would retain eligibility of the tolling project as allowed by 23 U.S.C. 129.