Costly Motorcycles

I guess the first thing I understood is that the original HOV lanes was built using federal highway funds. The use of the HOV lanes as HOT lanes will have to be considered as a continuation of the HOV lane original construction. So, first I would say that the original statement that “The motorcycles and the semis are specifically banned from using the toll road. End of story. Motorcycle license plates are too small to be photographed by the violation cameras and therefore they will not be allowed on the lanes. End of story.” Is wrong. Mr. Slug, I believe you were right in line with what I believed, the proposal did not address the issue. Jumping to the conclusion that will not be allowed is premature. I believe the state will have to address the issue, as motorcycles in the HOV lanes are not a state issue, but a federal one. I have not said that Virginia cannot look at and this and address it in legislation, but I believe title 23 of the USC address it for the state until it is addressed in the HOT law.


Motorcycles are permitted in High Occupancy Vehicle (HOV) lanes in all fifty states and no highway with any federal funding may restrict access to motorcycles. From 23USC102:
TITLE 23--HIGHWAYS
CHAPTER 1--FEDERAL-AID HIGHWAYS
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 102. Program efficiencies

(a) HOV Passenger Requirements.--
(1) In general.--A State transportation department shall
establish the occupancy requirements of vehicles operating in high
occupancy vehicle lanes; except that no fewer than 2 occupants per
vehicle may be required and, subject to section 163 of the Surface
Transportation Assistance Act of 1982, motorcycles and bicycles
shall not be considered single occupant vehicles.
(2) Exception for inherently low-emission vehicles.--
Notwithstanding paragraph (1), before September 30, 2003, a State
may permit a vehicle with fewer than 2 occupants to operate in high
occupancy vehicle lanes if the vehicle is certified as an Inherently
Low-Emission Vehicle pursuant to title 40, Code of Federal
Regulations, and is labeled in accordance with, section 88.312-93(c)
of such title. Such permission may be revoked by the State should
the State determine it necessary.

(b) Access of Motorcycles.--No State or political subdivision of a
State may enact or enforce a law that applies only to motorcycles and
the principal purpose of which is to restrict the access of motorcycles
to any highway or portion of a highway for which Federal-aid highway
funds have been utilized for planning, design, construction, or
maintenance. Nothing in this subsection shall affect the authority of a
State or political subdivision of a State to regulate motorcycles for
safety.

As a follow up, I have copied the Federal guidance web page for HOV lanes, and would not that even if the Fluor proposal does not explicitly permit motorcycles, conversion to HOT lanes and excluding motorcycles would be deemed a "significant change" requiring Federal approval. Now I am not saying the Federal government would or would not approve such a change, but it won't be up to just the folks at fluor to decide the issue. See below:

http://www.fhwa.dot.gov/operations/hovguide01.htm

Federal-Aid Highway Program Guidance on High Occupancy Vehicle (HOV) Lanes
This guidance is presented in 3 general sections. The first part provides background information and the Federal policy position regarding HOV lanes, and identifies when a Federal review is needed if a significant change in the operation of HOV lanes is contemplated. The next section describes the Federal review and the applicable requirements and regulations. The last two sections contain a list of the definitions and references used in this guidance. A summary of the regulatory requirements related to HOV lanes for the Federal-aid programs administered by the Federal Highway Administration (FHWA) is provided as Appendix A.

Purpose:

In accepting Federal-aid funds, agencies have agreed to manage, operate, and maintain HOV lanes as they were originally planned, designed, constructed, and approved. However, conditions change over time, and this guidance includes provisions to address these situations. The purpose of this guidance is to identify when a detailed review of a proposal to significantly change the operation of existing HOV lanes is needed, and the Federal actions that may be required.

Changes to the minimum number of people to be in a vehicle in order to use HOV lanes (for example, from 3 occupants to 2), or small adjustments to when HOV restrictions begin or end, are typically not considered significant operational changes and are not normally causes for further Federal review. However, a proposal to significantly adjust the hours of operation or to convert an HOV lane to a general purpose lane, is considered a significant operational change. Changes that do not comply with the original project design concept, or scope, require a further Federal review. Federal interests for seeking this review include consistency with the provisions of Title 23 and Title 49 of the United States Code (23 U.S.C. and 49 U.S.C.), operational commitments made during the National Environmental Policy Act (NEPA) process as described in Title 23 Code of Federal Regulation, Part 771 (23 C.F.R. Part 771), in project agreements, transportation planning requirements, and transportation conformity requirements under the Clean Air Act (40 C.F.R. Parts 51 and 93).

The questions and answers on the following pages provide more detail about:

- what is to be included in the initial proposal from an operating agency wishing to change the operation of its HOV lanes;

- what circumstances require a more detailed review for Federal actions; and

- what should be reviewed relative to the various Federal requirements.


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Section 1: Federal Policy Position and Need for Federal Review
What is FHWA's policy position on high occupancy vehicle (HOV) lanes?


FHWA strongly supports HOV lanes as a cost-effective and environmentally friendly option to help move people along congested urban and suburban routes. As part of an overall approach to handle the demand for travel and to address the impacts of traffic congestion, HOV lanes can be a practical option to adding more general purpose travel lanes. The FHWA encourages the implementation of HOV lanes as an important part of an areawide approach to help metropolitan areas address the needs they have identified for mobility, safety, productivity, environmental, and quality of life. Significant changes to the operation of an HOV lane, or efforts to convert an HOV lane to a general purpose travel lane, should be considered only after all the relevant factors, interests and consequences have been evaluated.

Why and when is it appropriate to consider HOV lanes?


The primary purpose of an HOV lane is to increase the total number of people moved through a congested corridor by offering two kinds of travel incentives: a substantial savings in travel time, along with a reliable and predictable travel time. Because HOV lanes carry vehicles with a higher number of occupants, they move significantly more people during congested periods, even if the number of vehicles that use the HOV lane is lower than on the adjoining general purpose lanes. In general, carpoolers, vanpoolers, and bus patrons are the primary beneficiaries of HOV lanes by allowing them to move through congestion. However, if there isn=t significant roadway congestion during the peak periods, along with a significant job base beyond the HOV lanes, it will be difficult to attract riders. Experience with HOV lanes from around the country has shown a positive relationship between ridership and travel time savings, suggesting as congestion grows, the travelers willingness to carpool or ride on a bus that uses an HOV lane, also grows. (1,2,3)

What are the benefits of HOV lanes? When during the day are HOV lanes appropriate?


In Texas, experience has shown that HOV lanes carry up to 40 percent of the total people in a corridor during the peak hour and save on average from 2 to 18 minutes of travel time in the morning rush hour. HOV lanes in Texas have a benefit to cost ratio ranging from 6:1 to 48:1, and in each case, demonstrating a cost-effectiveness that is greater than if two additional general purpose lanes had been added. (1)

During off-peak periods, the Washington DOT found that the HOV lanes are well used when congestion exists, which increasingly extends beyond the traditional peak travel periods. The average number of people in each car is higher than what was expected during non-peak periods, especially on weekends. A study performed in the Seattle area on weekend freeway use found that 30-60 percent of weekend traffic is HOV eligible, and when congestion occurs, these vehicles use the HOV lanes. (3)

What changes can be made to improve the operation of HOV lanes?

Driver frustration with HOV lanes perceived to be operating inefficiently, can over time result in a negative public sentiment against HOV lanes, which may potentially influence proposals to make significant operational changes to, or convert the HOV lane to a general purpose lane. Agencies are encouraged to pro-actively manage and operate, each HOV lane in a region, to continually improve their performance. Examples of possible operational strategies to improve the performance of an HOV lane may include:

-- Provide park-and-ride facilities and direct access or connections to HOV lanes;
-- Enhance the transit service along the corridor;
-- Changing the occupancy requirement or hours of operation to use an HOV lane; and
-- Allowing lower occupant vehicles to use HOV lanes by charging a fee (HOT lane).

Proven travel demand management (TDM) strategies that have been used to improve HOV system performance on both a region wide and facility specific basis include: ride sharing and guaranteed ride home programs; telecommuting and alternate work schedules; growth management, land use policies, and zoning ordinances; pricing (e.g., HOT lanes); parking management; trip reduction ordinances; park-and-ride lots; and traveler information systems.

Are HOV lanes always a good idea?

HOV lanes are not appropriate in every location or for every situation. Even after they are installed, changes occur in land use, the kinds of trips people take, the times people travel, and the levels of traffic congestion, which may warrant adjustments in the operation of the HOV lanes.

Does an agency have to get Federal approval to change how it operates its HOV lanes?


In general, no. Agencies that own and operate the HOV lanes have the authority and the responsibility to decide how they are operated. But, as described in more detail later, there are situations when proposals to significantly change the operation of HOV lanes (e.g., the conversion of HOV lanes to general purpose lanes) will require some Federal review and may require potential action.

What are FHWA's interests and role related to the operation of HOV lanes?

Agencies that own and operate HOV lanes are encouraged to involve the FHWA Division Office in the development of programs and initiatives to monitor how well the lanes are functioning, to assess their effectiveness with improving the efficiency of travel, to identify new strategies to improve performance, or to analyze the impacts of any significant changes to either the transportation system (including how it is operated), regional HOV system, or both.

Converting HOV lanes to general purpose lanes is always considered a significant operational change to the original project's design concept or scope. In addition, a significant operational change may involve any action that has the potential to adversely affect the area's flow of traffic, roadway and traveler safety, and the environment. To assure consistency with the Federal-aid program provisions of 23 U.S.C. and 49 U.S.C., a review of the important issues and possible impacts of any significant operational changes is needed, to determine if any Federal approval is required.

Note that the type of program funds originally used to design or construct the HOV lane is of particular federal interest. Certain Federal-aid program funds have specific limitations on their use and such uses cannot be changed unless specifically authorized by Federal statute. FHWA Division Offices, with involvement as appropriate from the Federal Transit Administration (FTA), are responsible for reviewing proposals to significantly change the operation of HOV lanes. Additional detail on significant operational changes to an HOV lane is provided in Section 2 of this guidance.

When would Federal actions be needed related to the operation of HOV lanes?

FHWA must be consulted if a proposed significant operational change can be reasonably expected to affect a specific HOV lane or portions of the regional HOV system, which were funded or approved by FHWA. This includes portions of the local, region, or Federal-aid Highway system, where operational changes to these facilities may also adversely affect the operation of one HOV lane, or portions of the regional HOV system. Applicable federal interests include consistency with the provisions of 23 and 49 U.S.C., approved projects and applicable mitigation commitments made pursuant to the NEPA process as described in 23 C.F.R. Part 771, in project agreements, transportation planning requirements, and transportation conformity requirements under the Clean Air Act (40 C.F.R. Parts 51 and 93).

Agencies should provide the FHWA Division Office with a brief proposal describing the proposed change to the operation of their HOV lanes. This proposal should describe:

-- the specific proposed change in operation and the reason for it;

-- the affected roadways and the geographic extent of the proposed change;

-- the category or source of any Federal funding that has been used for implementing the HOV lanes (including those changed or affected by the change); and

-- any discussions with other affected agencies (e.g., planning organizations and neighboring operating agencies).

What are the specific circumstances that require Federal review and possible action?

On a case-by-case basis, a review of proposals to change the original design concept, scope, or operation of the HOV lanes will determine if a Federal approval is required, or if any other actions may be necessary before the proposed changes occur. Federal approval is required if:

-- the proposed HOV lane conversion is located in an air quality non-attainment or maintenance area;

-- a significant change in the operation of an HOV lane could affect the transportation plan and transportation improvement program (TIP) conformity determination;

-- the HOV lanes were included in the approved State Implementation Plan (SIP) as a transportation control measure (TCM);

-- there are potential new or greater environmental impacts than were originally analyzed pursuant to the NEPA process, or conflicts with mitigation commitments contained in project decision documents; or

-- particular categories of Federal-aid funding were used to acquire right-of-way, design, or construct the HOV lanes.

The details and expected impacts resulting from the proposed operational change or agency action must be analyzed and submitted to the appropriate FHWA Division Office to initiate this review.

What is the purpose of the Federal review?

The review will determine if other Federal actions or approvals are needed, as well as what those actions are, and when they should happen. This review will assess: (1) the original approvals granted and commitments made that assumed the HOV lanes would remain in place; (2) the impacts of the proposed change on operational and safety issues; (3) environmental impacts of the proposed change and whether compliance with NEPA is required; and (4) consistency with existing transportation conformity determinations.

What information should be part of a Federal review?


The following information, along with any additional data or analysis that an agency believes justifies a significant change in HOV lane operation or conversion, will serve as the basis for the FHWA review:

Original HOV lane studies, plans, project agreements, legislative history, sources and amounts of funding;


Commitments made in the environmental processing and project approval;


Operational assessment of existing HOV lanes (i.e., traffic characteristics, HOV usage, people transported, etc.); description of support programs and services (i.e., park-and-ride lots, carpool and vanpool initiatives, marketing, etc.); description of roadway construction or other activities that may have affected HOV lane or system performance; trends in HOV operational characteristics over time; and other agency initiatives implemented to improve the efficiency of the HOV lanes;


Analysis of predicted operation of the current and planned future transportation network with the proposed operational change or conversion (i.e., affect of the proposal on the existing and future improvements planned for the facility, corridor, HOV and regional surface transportation systems; air quality conformity; potential environmental effects of the proposed conversion or operation; other environmental impacts; regional transportation plans (e.g., congestion management system, regional HOV system plan, region or statewide transportation plan); safety features; and design standards);


An assessment of the predicted performance of alternate lane management strategies in place of, or in addition to, the existing HOV lane, such as pricing (e.g., HOT lane, toll lane), express, transit; or truck lanes;


Identification as a non-attainment or maintenance area, if applicable. If the HOV lane is located in such areas, provide the date of the latest conformity determination for the transportation plan and the TIP; and


Was the HOV lane included in the approved SIP as a TCM and is a modification of the SIP required.
Based on the results of this review, FHWA and FTA will determine if the proposed action complies with these requirements. If it is determined that the proposed action complies with these requirements, no further federal action will be required.

If the proposed action to significantly change the operation of the HOV lanes is determined not to comply with these requirements, then the change will not be approved. If an agency implements a change which has been determined to be noncompliant with existing legislation or regulatory requirements, sanctions will be imposed by FHWA, consistent with 23 C.F.R. 1.36, including withholding further federal highway project approvals. Section 2 contains additional details on the regulatory requirements, eligibility issues, and limitations related to HOV lanes with the Federal-aid programs that are administered by FHWA.

Are there recommended procedures to evaluate the performance of an HOV lane?

Agencies are encouraged to develop and support initiatives that continuously monitor and evaluate how well the HOV system, specific lanes, or support programs are performing. The results of the performance evaluation provide the basis for making revisions to improve the operation of the HOV system or specific lanes. Technical guidance and recommended practices on performance monitoring and evaluation of HOV systems can be found in the FTA report titled "Suggested Procedures for Evaluating the Effectiveness of Freeway HOV Facilities" or the National Cooperative Highway Research Program Report 414: "HOV Systems Manual."

These reports identify a recommended framework and components of a continuous performance monitoring and evaluation activity, along with suggested procedures for analyzing the operation of a specific HOV lane or support programs. The purpose of monitoring and evaluating the performance of an HOV lane or support program, is to assess the influence or impacts that have accrued, and to determine if they are meeting their identified goals and objectives. The deficiencies identified from these evaluations should serve as a direct input into immediate decisions that are made to improve the operational efficiency and safety of the HOV lane.


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Section 2: Federal Requirements
The following section highlights the requirements that should be considered in reviewing agency proposals to significantly change the operation or convert HOV lanes into general purpose travel lanes.

What are the requirements for the minimum number of people to be an HOV?


23 U.S.C. 102(a)(1) says that a "State highway department shall establish the occupancy requirements of vehicles operating in high occupancy vehicle lanes; except that no fewer than 2 occupants per vehicle may be required."

Are any exceptions to the 2 persons per vehicle minimum allowed?

23 U.S.C. 102(a)(1) notes that "motorcycles and bicycles shall not be considered single occupant vehicles." Also, 23 U.S.C. 102(a)(2) notes that "...a State may permit a vehicle with fewer than 2 occupants to operate in high occupancy vehicle lanes if the vehicle is properly labeled and certified as an Inherently Low-Emission Vehicle." And Section 1216(a)(5) of the Transportation Equity Act for the 21st Century (TEA-21) notes that "...a State may permit vehicles with fewer than 2 occupants to operate in high occupancy vehicle lanes if the vehicles are part of a value pricing pilot program..." In addition the Environmental Protection Agency (EPA) regulations in 40 C.F.R. section 88.313-93 allows Inherently Low Emission Vehicles (ILEV) of fleet owners to use HOV lanes.

What is an ILEV? What Regulations Exist?

ILEVs are a subcategory of clean-fuel vehicles that have essentially no fuel vapor emissions. These vehicles will have a single dedicated gaseous fuel (Compressed natural gas, liquid natural gas, or liquified petroleum gas) systems. Vehicles that can operate on more than one fuel and/or an alcohol fuel cannot be classified as an ILEV vehicle. In addition, none of the hybrid-electric vehicles that have been certified by EPA, qualify as an ILEV because their engines use conventional gasoline.

Clean-fuel vehicles are certified by EPA to one of the following categories: Low-Emission Vehicles (LEVs); Ultra Low-Emission Vehicles (ULEVs); or Zero-Emission Vehicles (ZEVs). An ILEV is an exhaust emission classification that exists between the LEV and ULEV standards. EPA established the ILEV category of vehicles to encourage their use and recognize that there are certain technologies and clean fuels which have inherently lower emissions in the primary ozone precursors (hydro-carbons and oxides of nitrogen)than typical clean-fuel vehicles. Because the ILEV concept is a federal program, the program requirements, certification, labeling process, and other regulatory provisions are administered through EPA.

Since ZEVs are non-hybrid electric powered vehicles with no emissions, all certified ZEVs can be considered as ZEV-ILEVs. EPA certifies ZEV as both ZEV's and ILEVs when requested by the manufacturer. As such, our interpretation of the intent of section 1209 of TEA-21 is that in addition to ILEVs, vehicles certified by EPA as ZEVs could be exempted from HOV lane restrictions, if a State so chooses. The emissions standards corresponding to these categories of vehicles may be found in 40 C.F.R. Part 88.104.94(g). EPA maintains an updated list of vehicles certified as ILEVs or ZEV-ILEVs which can be found at the following web site: http://www.epa.gov/autoemissions

EPA is the only entity with the authority to certify ILEVs. There are a number of vehicles that have been converted in the field by entities known as aftermarket conversion companies. At this time none of these aftermarket conversions comply with EPA=s certification requirements, and therefore, cannot operate in an HOV lane. The first year that EPA certified any ILEVs was 1996.

ILEVs are exempt from meeting the normal HOV lane occupancy or vehicle type restrictions. However, this exemption for ILEVs does not include bus-only HOV lanes. The use of HOV lanes by ILEVs is not intended to cause congestion.

Therefore, use of HOV lanes by non-fleet ILEVs could be revoked, should the State determine it is necessary. Use of HOV lanes by fleet ILEVs could be revoked following a petition to EPA by the state in accordance with 40 C.F.R. section 88.313-93(c)(2). Section 241 of the Clean Air Act defines a fleet as ten or more vehicles that are owned or operated by a single person, meet the Clean Fuel Fleet Vehicle Program emission standards, and are capable of being centrally fueled.

Section 1209 of TEA-21 stipulates that labeling of ILEVs must be in accordance with section 40 C.F.R. section 88.312-93(c). These regulations require three labels, one to be attached to the rear of the vehicle and one to each side (the smallest is 10-inches by 7-inches). Manufacturers' and dealers are currently responsible for providing and applying labels to eligible vehicles when requested by customers.

EPA's regulations do not specify who will insure that the labels are properly attached to ILEVs. These regulations were written to apply specifically to vehicles operated by fleets in non-attainment areas that adopted the Clean Fuel Fleet program in the SIP. Due to the physical size of the labels, they may not be visually desirable to vehicle owners, or compatible with some of the smaller vehicles that have been certified as ILEVs by EPA. Therefore, vehicles certified as ILEVs may use a State approved label or license, and are not required to display the three labels that EPA requires for fleet operated vehicles.

Any State administered labeling program would need to certify that any allowable zero emission vehicle would conform to the EPA established ILEV standards. Prior to making a decision on whether to allow ILEVs or any zero emission vehicles to use HOV facilities, a thorough consideration of the issues related to the impact on travel demand, facility operations, enforcement, program administration, marketing, and continuous public outreach is recommended.

Why is the Federal government interested in how a locality operates its HOV lanes after they have been built?

In accepting Federal funds to acquire right-of-way, to design or construct HOV lanes, agencies agree to manage, operate and maintain the HOV lanes in a safe and efficient manner. The transportation system, particularly in urban areas, is a complex collection of interdependent modes, systems, infrastructure, facilities, and operational strategies. As a result, changes made to the operation of one mode or facility, can adversely affect the performance of other portions of the system. Our customers, the traveling public, expect a transportation system that meets their needs for mobility today, and into the future, in an effective and efficient manner, regardless of the mode or route.

When and for how long should there be requirements for a minimum number of occupants for a vehicle to use the HOV lanes?

An operational analysis of current and estimated future travel should be the basis for determining when, during a typical day, there should be an occupancy requirement for vehicles to use an HOV lane. HOV lanes may be operated on a 24-hour basis, for extended periods of the day, during peak travel periods only, during special events, or other activities. The requirement for a minimum number of occupants in a vehicle to use an HOV lane must be in effect for most and/or all of at least one of the usual times during the day when the demand to travel is greatest (e.g., the morning or afternoon rush hours). At a minimum, the vehicle occupancy requirements for an HOV lane must be in effect during the times of the day when the problems from traffic congestion on the roadways and within the transportation corridor are at their worst. These critical times may be identified when an area's Transportation Plan is developed and updated.

What would be considered a "significant" change to the operation of an HOV lane?

A significant operational change may involve any action that has the potential to adversely affect the area's flow of traffic, roadway and traveler safety, and the environment. A proposal to significantly adjust the hours of operation, or to convert an HOV lane to a general purpose travel lane, is considered a significant operational change. Changes which are considered inconsistent with the original project design concept or scope, would also require a Federal review as described in this guidance. Examples of significant operational changes could include:

-- switching from 24 hour HOV lane operation to only a portion of the day or week;

-- implementing a pricing option (e.g., HOT lane, toll lane) that would result in single occupant vehicles using an existing HOV lane;

-- any significant reduction in the hours of operation of the HOV lane, if it is operational only during one peak travel period; or

-- if an HOV lane is being managed and operated in a manner that renders it functionally inoperable or obsolete (e.g., if no enforcement of the occupancy requirement is provided).

Proposals to adjust only the HOV lane hours of operation during the day or the occupancy requirement, are typically not considered significant operational changes, and may not require an explicit Federal review or approval. However, even minor adjustments or changes to the highway system, specific HOV lanes, or portions of the regional HOV system, may be considered a significant operational change based on the effect it may cause. Examples of operational changes that are typically not considered significant changes could include:

-- making minor changes in hours during peak travel periods;

-- switching the occupancy level from HOV-3 to HOV-2; or
-- adding a pricing option to allow two occupant vehicles to use an HOV-3 lane.

If a test or demonstration project is proposed that seeks to significantly change the operation of the HOV lane for any period of time, it will require a review as described in this guidance, prior to initiating such a test or demonstration.

What should be reviewed related to an area's Congestion Management System (CMS)?

According to the transportation planning requirements noted in 23 C.F.R. 450.320(c), in Transportation Management Areas (TMAs), the planning process must include the development of a CMS that provides for the effective management of new and existing transportation facilities through the use of travel demand reduction, travel management, traffic operational strategies, and meets the requirements of 23 C.F.R. part 500. 23 C.F.R. 500.109 defines an effective CMS as a systematic process for managing congestion that provides information on transportation system performance, and on alternative strategies for alleviating congestion, to enhance the mobility of persons and goods to levels that meet State and local needs.

The CMS encourages the consideration and implementation of strategies that provide the most efficient and effective use of existing and future transportation facilities. Consideration needs to be given to strategies that reduce SOV travel and improve existing transportation system efficiency. A requirement of the CMS is to include implementation of a process for periodic assessment of the efficiency and effectiveness of implemented strategies, in terms of the area's established performance measures. The results from this evaluation may provide guidance as to the effectiveness of different strategies, or revisions to the management and operation of an existing strategy, to improve the facility's performance.

Therefore, if the HOV system or a particular lane is found to not meet the established performance thresholds, agencies are encouraged to make revisions to improve their operation. However, where the conversion of an HOV lane to a general purpose lane is determined to be the appropriate operational change, then explicit consideration is to be given to the incorporation of appropriate travel management and traffic operational strategies to accommodate future travel demand and maintain the functional integrity of the facility. These travel management and traffic operational strategies may include but not be limited to incident management, ramp control and metering, traveler information, value pricing, and transit service improvements.

The CMS in all TMAs are to be addressed during the metropolitan planning process certification reviews. If the TMA does not include a CMS that meets the requirements of 23 C.F.R. 500.109, deficiencies will be noted and corrections will need to be made.

What should be reviewed related to an area's air quality conformity finding?

In air quality non-attainment and maintenance areas, transportation plans, programs and projects cannot cause or contribute to new air quality violations, increase the frequency or severity of existing violations, or delay timely attainment of the identified standards [23 C.F.R. 450.216(a)(4) and 23 C.F.R. 450.330(b)]. Any significant changes in the design concept or scope (i.e., conversion of HOV lanes) of a project that has been already addressed and accommodated in a conforming Transportation Plan or TIP require that the viability of the existing conformity determination be re-evaluated. This reevaluation would be done through a new conformity analysis and determination of the transportation plan and the TIP and would be conducted by the Metropolitan Planning Organization (MPO) with input from the Environmental Protection Agency, FTA, FHWA, and state and local agencies. The MPO must submit its conformity finding to FHWA and FTA for a final conformity determination [40 C.F.R. Parts 51 and 93]. Additional information can be found in the FHWA publication titled A Transportation Conformity Reference Guide.@

What should be reviewed related to the State Implementation Plan?

The Clean Air Act Amendments of 1990 contained a list of TCMs, including HOV lanes, which can be considered and included in a SIP to assist an area in attaining or maintaining National Ambient Air Quality Standards. Non-attainment and maintenance areas must provide for timely implementation of TCMs that are included in an approved SIP. If the HOV lane is included in the approved SIP as a TCM, a SIP modification, approved by EPA, will be required before it can be converted to a general purpose lane.

What should be reviewed related to the results of the project's National Environmental Policy Act process?


During the development of a project pursuant to the NEPA process, FHWA, FTA, and their partners may have made approval of the project subject to conditions and mitigation commitments. An agency proposing to convert an HOV lane to a general purpose travel lane will initiate a review of any such conditions and commitments contained in the project's Record of Decision or Finding of No Significant Impact, or in other agreements. This review will determine whether the original project's decision/approval is still valid or if the proposed conversion constitutes a new action.

In the latter case, the determination that the proposed conversion has the potential for environmental impacts that are new or greater in magnitude than those originally analyzed, or is in conflict with mitigation commitments, will require Federal approval of the action pursuant to 23 C.F.R. 771. The environmental documentation will be appropriate to the NEPA class of action and will include documentation regarding public/stakeholder involvement in decisions concerning the proposed conversion.

What should be reviewed related to design or safety features?


When a proposal is made to significantly change the operation of an HOV lane, an assessment is required on the existing and future impacts to the safety and operation of the facility. Agencies must ensure that appropriate geometric and other design features (such as cross-section, alignment, lane and shoulder widths, access points, etc.) exist in support of the proposed new use. Agencies must satisfy the appropriate design standards and rectify any unsafe conditions that may be identified, prior to initiating any test or permanent change that may adversely affect the operation of an HOV lane.

What should be reviewed related to limitations on the use of Federal funding?


Several categories of Federal-aid funding have been and can be used to acquire right-of-way, or to design or construct HOV lanes. These categories have specific eligibility requirements and regulations that remain in effect even after the project is completed. Some funding categories cannot be used for the provision of additional roadway capacity in the form of unrestricted general purpose travel lanes. These categories include funds for the Congestion Mitigation & Air Quality Improvement (CMAQ) program [23 U.S.C. 149(b)], Interstate Maintenance program [23 U.S.C. 119(d)], and Mass Transit Capital Investment Grants [49 U.S.C. 5309(a)(1)(B)]. This restriction also applies if higher Federal participation ratios were used for the provision of HOV lanes with funds from the National Highway System (NHS) program, the Surface Transportation Program (STP), the Interstate 4R Discretionary program, the Interstate Construction program (23 C.F.R. 635), the Interstate Maintenance Discretionary Program, and Interstate the Discretionary program. (See Appendix A)

If funds from these programs were used to design or construct HOV lanes, any significant changes to the operation of an HOV lane, are not permitted. Repayment of a restricted class of funds previously expended on the project (payback) and the substitution of state funds or other authorized federal funds in an effort to overcome funding limitations is not permitted, unless specifically authorized by Federal statute, because FHWA currently lacks general statutory authority to permit payback of these funds and reobligation for a new purpose. As part of the documentation for any proposed action to significantly change the operation or convert an HOV lanes to a general purpose travel lane, the sources and amounts of Federal-aid funding used for the design and construction of the HOV lanes must be identified. An analysis must also be made of the requirements of the associated project agreements to determine if any other specific provisions have been established that may have further restricted the operation of the HOV lane.

Based on the results of this review, FHWA and FTA will determine if the proposed action complies with these requirements. If it is determined that the proposed action to significantly change the operation of the HOV lanes does not comply with these requirements, then the change will not be approved. If an agency implements a change which has been determined to be noncompliant with existing legislation or regulatory requirements, sanctions will be imposed by FHWA, consistent with 23 C.F.R. 1.36, including withholding further federal highway project approvals.

Additional information on the eligibility, funding, participation levels, and limitations related to the Federal-aid programs that may have been the source of funding to design or construct HOV lanes, can be found in Titles 23 (Highways) and 49 (Transportation) of U.S.C. and the FHWA publication titled "A Guide to Federal-Aid Programs and Projects." For high priority or demonstration projects, the federal legislation authorizing the project must be reviewed to obtain information related to any eligibility, funding, participation levels, or limitations. A summary of the regulatory requirements related to HOV lanes for the Federal-aid programs that are administered by FHWA is provided as Appendix A.


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Section 3 -- Definitions

The following definitions apply to terms used in this guidance:

(a) The term "agency" means any state or local agency which is considered to be the owner and operator of the HOV lanes or the adjoining transportation facility.



(b) The term "de-obligation" means a downward adjustment of previously reported obligations. De-obligations may occur due to less work being required that provided under a contract, cancellation of project or contract, initial obligation determined to be invalid, reduction of previously recorded estimate, corrections or duplicate obligations.



(c) The term "High-Occupancy Vehicle" means a motor vehicle, carrying at least two or more persons, including carpools, vanpools and buses.



(d) The term "HOV lane" means any preferential lane designated for exclusive use by high-occupancy vehicles (HOVs) for all or part of a day, including a designated lane on a freeway, other highway or a street, or independent roadway on a separate right-of-way.



(e) The term "HOV facility" means any kind of treatment that gives priority to buses, van pools, car pools and high-occupancy vehicles, including HOV lanes, park-and-ride lots, and other support facilities or elements.



(f) The term "HOV system" means any coordinated region wide network of integrated HOV facilities.



(g) The term "Inherently Low Emission Vehicles (ILEVs)" means any kind of vehicle which, because of the inherent properties of the fuel system design, will not have significant evaporative emissions, even if its evaporative emission control system has failed.



(h) The term "obligation" is a commitment of federal funds which creates a legal liability of the federal government for the payment of appropriated funds for goods and services ordered or received.



(i) The term "occupancy requirement" means any restriction that regulates the use of a facility for any period of the day based on a specified number of persons in a vehicle.



(j) The term "reobligation" means a new legal commitment of funds previously obligated for another specific purpose and deobligated.

Why doesn't one of you motorcycle riders write a letter to the new VDOT commissioner and ask him to clarify the issue? And ask him to put it in writing that your right to use this public thoroughfare will not be infringed for the benefit of an Australian conglomerate.

I know you all don't want to believe me on this. Unfortunately, I am pretty darn sure of what I heard. Not 100%, but close.

Anyway, I hope I am right. I hope the plan IS to ban motorcycles. Few things would cause a greater outcry against the Toll Roads.

Don't like it? Stop whinin', start writin'.

Well, there he goes again.

Every time Fluor has something unpleasant to say, they start quoting a statute that almost, but doesn't quite, answer your question.

Mr. Groat hid behind the same tactic when Robert Lang pressed him in public to say the words "HOV will always be free." Groat simply kept talking about the statute, as if laws cannot be changed.

Anyway, as for his reply, why couldn't he have said, "we at Fluor looked at this and have decided that motorcycles will be allowed to use the system even if we have to let them on for free, because it is, per the FHWA, a safety issue." Instead he says you can pay the toll like any other vehicle, safety be damned.

And take careful note that he only says "should be able" to even access the toll road. Well, that's quite an assurance he has given you, isn't it? I mean, if Mr. Groat, the chief lobbyist, doesn't know the answer to this after years of working every day to make the toll roads happen, well, who would know?

Write the VDOT commissioner. Insist on free motorcycles and free carpools. (Oh, right. Sorry. You already wrote the guy in charge! HA! [:D])

Please note, as discussed before they have to address it federally to change the motorcyle rule. The HOT signed by the Governor is also silent on the subject of addressing that. So, this guy is wrong. He is obviously out of his league and working from a business prospective. Not a legal one. Remember, when you get down to it there are a variety of laws which govern one issue. Federal funds built the HOV lanes and Virginia has not request that those provisions be changed.