Taking the Teeth Out of Federal HOV/HOT Performance Requirements

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HOV-lane-aheadIn the MAP-21 surface transportation reauthorization bill enacted in 2012, Congress required FHWA to actually start enforcing its standard for the performance of federally assisted HOV and HOT lanes. Specifically, that the average speed in such lanes during peak periods must exceed 45 mph at least 90% of the time during any 180-day period. State DOTs would thenceforth be required to take action within 180 days to remedy the failing status of such lanes by either: (1) increasing the HOV occupancy requirement, (2) increasing the toll rate (if it’s a HOT lane), or (3) adding lane capacity. In the December 2012 issue of this newsletter, I commended the new provision as “a gift from Congress for HOV and HOT lanes,” because the threat of sanctions would give state DOTs a defensible reason to do what they were reluctant to do on their own: increase the HOV occupancy requirement “because the feds made us do it.” This, I expected, would lead to a lot more HOV to HOT conversions.

Alas, political pressures from California politicians led to this sensible reform being watered down in last year’s FAST Act. Rep Grace Napolitano (D, Norwalk) argued for relief because 60% of the state’s HOV lanes were failing to meet the standard. To the best of my knowledge, FHWA had not actually imposed sanctions on any of them, but Caltrans was having to submit reports acknowledging the failures. Napolitano recruited two conservative Republicans, Reps. Ed Royce (R, Fullerton) and Ken Calvert (R, Corona), for an amendment last November to permit FHWA to waive enforcement of the standard. I’m told that earlier Napolitano proposals had called for removing the sanctions.

In the end, Congress did include a waiver of the compliance requirements. This may be done, on appeal by a state, if the DOT Secretary determines that “the waiver is in the best interest of the public, the public authority is meeting the conditions under subparagraph (D) [submitting a plan], and the public authority has made a good faith effort to improve the performance of the facility.”

Given that Congress sets the tone and calls the shots, I cannot imagine that FHWA will now feel free to impose sanctions that would lead to a state DOT increasing the HOV occupancy requirement, or pressing its legislature to limit or eliminate regulations that allow low-emission and energy-efficient vehicles to clog HOV and HOT lanes. This increases my pessimism that any of California’s three major metro areas will be able to achieve effective express toll lane networks. There’s not much point in converting overcrowded HOV-2 lanes to HOT if there is little or no room for toll-paying customers. Fortunately, most other state DOTs are proceeding far more sensibly on these questions.

(This article first ran in April’s
Surface Transportation Innovations)

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