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Direct user charges.

Transportation agencies are considering alternative sources of highway revenue to help build new and maintain existing highways. State departments of transportation (DOTs) rely primarily on Federal and State motor fuel and vehicle taxes to fund highway improvements on a pay-as-you-go basis. The combination of Federal, State, and local highway user taxes and fees, however, has not produced adequate revenues to keep pace with growth in the costs of highway programs. The biggest challenge becomes how the Nation will manage the system more efficiently and build, operate, and maintain existing and new facilities. Highway infrastructure is an asset, a continually growing asset.

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According to the U.S. Department of Transportation's 2002 report, Status of the Nation's Highways, Bridges, and Transit: 2002 Conditions and Performance Report, revenues would have to increase by an estimated 18 percent to maintain current highway conditions and performance, and 65 percent to improve those conditions and performance consistent with the needs and expectations of a growing population and economy.

Several factors contribute to this shortfall. Taxes on motor fuel are levied on a gallonage basis, but due in part to increased vehicle fuel efficiency, taxes do not keep pace with rising highway construction costs. Also, Federal and State elected officials are hesitant to increase tax rates on motor fuel.

In response to the growing gap between highway needs and available funding, transportation policymakers may consider alternative sources of highway revenue to supplement the fuel tax. Among the alternatives are various kinds of fees that are charged directly to users of specific highway facilities. Dubbed direct user charges (DUCs), these tolls pay for the development, operation, and preservation of highway facilities. Among the variations are tolling new highway facilities, tolling sections of existing interstates that require major rehabilitation or expansion, tolling vehicles that do not meet the occupancy requirements for use of high-occupancy vehicle lanes (HOT lanes), tolling dedicated truck lanes, and congestion pricing along designated express lanes.

The introduction of DUCs creates both opportunities and challenges for State DOTs. Two of the issues involve the State's view of the purpose of tolling highways and of how DUC funds should be used. Another issue revolves around the major difference in the way that tolling entities operate compared with State DOTs in terms of mission, goals, business practices, culture, organization, and financial constraints. Still another issue is the applicability and transferability of toll authority conventions to State and local transportation agencies. Lessons learned in dealing with these institutional issues can be drawn from the experiences of transportation organizations that already are using alternative funding approaches to manage the system more efficiently and effectively.

Purpose of Direct User Charges

The principal purposes of DUCs are revenue generation and demand management. Traditionally, State and local DOTs used tolls primarily to finance specific transportation facilities. Growing congestion in many metropolitan areas and the difficulty in constructing new facilities to relieve that congestion have increased interest in a second use of direct user charges--to manage travel demand during peak periods. Because congestion tolls may generate substantial revenues, they also may be used to increase transportation capacity by funding new or expanded facilities.

When private-sector entities are involved in DUC programs, the challenge for transportation agencies is to find the balance between revenue generation and demand management purposes.

Regulation of DUC Revenues

State transportation agencies that are developing a DUC program are faced with several decisions, such as how to collect the charges and how to adjust rates over time. The regulation of DUC rates can have a significant effect on revenue generation, demand management, and the potential for attracting private-sector involvement.

One of the greatest challenges to a viable program is the inability to increase DUC rates commensurate with the costs of developing, financing, operating, and preserving the facility. The Illinois State Toll Highway Authority waited more than 20 years to obtain permission to raise its rate schedule, which severely limited its ability to finance needed improvements and affected the bond ratings it was able to obtain. Transportation agencies contemplating DUC programs must therefore understand that obtaining approval for DUCs in the first instance is only one hurdle in managing this kind of revenue program.

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Another challenge occurs when public sponsors of tolled facilities retain authority for developing and changing DUC rate schedules. This risk is greatest when ratesetting authority is vested in elected or appointed officials or requires public authorization by referendum. The Province of Ontario, Canada, recently tried to prevent its concessionaire from raising rates on Highway 407 (known as the Electronic Toll Road), just north of Toronto, but the courts ruled in favor of the concessionaire.

The imposition of a DUC program requires several regulatory decisions regarding: (1) the level of user charges, (2) the choice of whether those charges are variable or fixed, (3) collection methods and technologies, (4) criteria for determining and adjusting DUC rate schedules over time, (5) public and private responsibilities for regulating toll schedules and rates of return to assure equity and avoid perceptions of excess profits, (6) the balance between government control and the application of market forces in regulating the use of highway facilities, and (7) the effects of government regulation of DUC rate schedules and other government policies on the private sector's interest in becoming an equity partner in projects funded by DUCs.

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Use of DUC Revenues

Four options for using DUC revenues are possible. The first involves dedicating the DUC revenues to developing, operating, maintaining, and preserving the specific facility where the revenues are generated. This linkage is typically made when DUC revenues are pledged to pay the debt service costs of revenue bonds issued to build, expand, or rehabilitate highway facilities, as specified in bond covenants.

The second option is dedicating the funds to the improvement of other transportation services in the corridor, especially transit services if the objective of the DUC is to manage demand and reduce highway congestion.

The third option is the development, operation, maintenance, and preservation of a system of highway facilities, all of which could be tolled facilities or a combination of tolled and nontolled facilities. This portfolio approach involves using DUC revenues to offset the costs of the overall highway system.

The last option is application of the DUC revenues to the general transportation fund to be used as needed by the State DOT to fund priority transportation projects, whether highway or other modes.

Each option will affect the potential for a private-public partnership. The more direct the relationship between the collection of DUCs and their specific use, the more public support State DOTs are likely to receive when imposing DUCs for the first time or increasing rates in subsequent years.

Authority and Responsibility for Program Functions

An important consideration before implementing a DUC program is the organizational alignment of roles and responsibilities and the relationship between DUC units and State and local transportation agencies. Currently, most State and local transportation agencies do not collect DUCs and therefore do not have units devoted to their administration. Once transportation agencies incorporate DUCs into their funding and financing approaches, the traditional organizational arrangements suited to a pay-as-you-go approach may no longer be adequate.

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Collection of DUCs imposes a new set of fiscal management responsibilities, including cash collection, handling, and management; security; accounting and billing; customer service; and investment management. To accommodate these requirements, a DOT may use one of several organizational arrangements:

A separate authority distinct from the State DOT responsible for all aspects of DUC-supported programs and projects. Many tolling entities that emerged prior to the Interstate System used this model. Examples include the turnpike and bridge authorities in Illinois, Indiana, Massachusetts, New Jersey, New York, Ohio, and Pennsylvania.

A specialized unit within or related to the State transportation agency responsible for all aspects of DUC programs and projects, but organizationally distinct from the rest of the agency. This model is becoming the predominant one for organizing new tolling entities. Examples include the Colorado Tolling Enterprise, Florida's Turnpike Enterprise, North Carolina Turnpike Authority, and the Texas Turnpike Authority.

DUC program functions integrated into the State DOT as part of the responsibilities of existing functional units. Examples of this model include the New York State Department of Transportation's (NYSDOT) operation of tolls on various parkways in the State and the original model used by the Florida Department of Transportation (FDOT) to organize the functions of Florida's Turnpike after taking it over from the Florida Turnpike Authority in 1969.

DUC programs and facilities contracted to private consortia or local or regional toll authorities, such as California's transportation corridor agencies, Florida's regional expressway authorities, and the emerging regional mobility authorities in Texas.

Independent turnpike authorities both complement and compete with their State DOT counterparts. Independent toll roads add capacity to a region's highway network and help to relieve congestion on existing facilities, whether tolled or nontolled. In some instances, however, bond covenants include so-called "noncompete clauses," which preclude the construction or expansion of parallel nontolled facilities that could attract traffic from the tolled facility. These clauses can be a major source of dispute between independent toll authorities and their State or local DOT counterparts. A case occurred in southern California when the Orange County Transportation Authority recently reacquired the State Route 91 (S.R. 91) express lanes from the private-sector concessionaire to allow highway capacity expansion in this highly congested corridor.

Tolling units within State DOTs are usually semiautonomous entities to protect the integrity of the funding mechanisms and service and preservation commitments associated with the revenue bonds and loan agreements to which the DUC funds are pledged. These units are more likely to integrate their capital planning and programming with the rest of the department than are independent authorities.

The Oklahoma Turnpike Authority is a hybrid tolling organization that incorporates elements of both the independent and semiautonomous tolling models. It operates as an autonomous turnpike agency but is closely linked to the State DOT. The authority has its own appointed board and hired staff responsible for the development, operation, and maintenance of 10 turnpikes across the State. The secretary of transportation, however, is also the transportation authority director. This arrangement ensures consistent and coordinated planning and programming.

A number of State DOTs have divisions that successfully apply DUCs to selected facilities. The Maryland Transportation Authority (MdTA), as a variation of the semiautonomous organizational model, is an independent State agency that acts on behalf of the Maryland Department of Transportation (MDOT). MdTA owns and operates all of the tolled highways, bridges, and tunnels in Maryland. The Maryland State Highway Administration is responsible for all nontolled State highways, bridges, and tunnels. Although Maryland uses the concept of a statewide transportation trust fund to pool various financial resources to fund infrastructure programs and projects across the modes, the toll revenues collected by MdTA are kept separate to support revenue bonds issued by the authority. The MdTA is authorized to issue debt to fund transportation infrastructure projects when appropriate.

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Private- and Public-Sector Roles and Responsibilities

DUC programs offer the potential to form partnerships between public and private stakeholders. With the prospects of bonding against future revenues, DUCs enable the private-sector to become more involved in financing highway infrastructure. Greater opportunity is available for alternative funding approaches through the creative use of private sector equity, longer term financial arrangements, improved risk management, and additional techniques honed in other infrastructure industries such as commercial buildings, manufacturing and processing plants, and telecommunications. Contract timeframes will likely increase to reflect the private sector's willingness and ability to manage the risks associated with longer term commitments.

The potential for expanded involvement by the private sector may be constrained by U.S. tax laws that limit the duration of private management contracts for projects funded by tax-exempt debt (no more than 15 years, including extensions) and other laws.

In addition, strategic, security, economic, and mobility questions may arise regarding the appropriateness of foreign ownership and control over public-use transportation infrastructure in the United States.

DUCs, as a significant source of funding for highway projects in this country, will likely pose a number of additional challenges relating to the roles and responsibilities of traditional stakeholders and the allocation of funds.

Traditional providers of highway planning, design, and construction services are accustomed to the pay-as-you-go approach. Institutional inertia is one of the most significant potential impediments to the formation of public-private partnerships that go beyond traditional outsourcing of design and construction services. Evidence of institutional inertia is reflected by the continuing resistance to contract reform by many construction contractors, who insist on the traditional design-bid-build method. Institutional inertia based on strict adherence to business as usual, fear of change, and perceived threats to traditional business relationships and market presence represent potential obstacles to the successful implementation of DUC programs.

Mixing Traditional Tax and DUC Revenues

Motor fuel taxes are only indirectly related to the use of the highway facilities they support. The revenues from Federal motor fuel taxes are credited to the Federal Highway Trust Fund and annually distributed back to State DOTs through congressional appropriations for the formula-based programs, allocated demonstration programs, and designated earmarks. State motor fuel taxes and other highway funding sources (driver's license and vehicle registration fees) are commingled in various ways with other types of indirect revenue sources, such as sales and income taxes. The extent of commingling varies from State to State, and the relative magnitude of these other taxes and fees also vary considerably.

In each instance, the method of revenue collection separates the act of paying for highway facilities from their use, helping to create the illusion of so-called "free highways." This method of collection also has enabled State DOTs to program the use of these revenues to projects on a systemwide basis, because the proceeds of motor fuel taxes are not dedicated to the facilities where the fuel consumption occurred.

In contrast, DUC mechanisms such as tolls imply a direct linkage between the motorist's use of the facility, the toll payment, and recognition that toll revenues pay for the construction and upkeep of the facility where the fees are collected. However, motorists also are aware that their motor fuel taxes are meant to pay for highways and often resist DUCs because they believe that tolls on top of motor fuel taxes represent double taxation.

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For State DOTs considering DUCs for selected highway facilities, an important institutional consideration is whether to dedicate the revenues to the facilities where they are collected or to mix DUC-based revenues with tax-based highway program funds. States can use any one of a variety of alternative models, such as segregating the DUC revenues and dedicating them to the facility where they are collected. Another option is segregating them but allowing them to be used to finance any transportation improvements in the highway corridor, including transit, or allowing them to be used on other facilities where DUCs are collected. Still other alternatives include mixing DUC revenues with highway program revenues for use on facilities regardless of whether tolls are collected on them, mixing them regardless of mode or facility type, or mixing DUC revenues with other general funds for expenditure on any public purpose.

If DUC revenues are segregated and are able to fully cover capital, operation, maintenance, and debt service costs, States can use scarce Federal-aid and other State highway program funds on other facilities. The agency then can avoid the additional requirements associated with the use of Federal-aid funds in developing or improving those facilities. In addition, issuing bonds is easier and cheaper if there is a clearly defined and dedicated revenue source for debt service payments.

DUCs can still be dedicated to a specific facility even if revenues from other sources are required to fully fund the facility. Traffic on many new facilities may not be adequate to allow those facilities to be financed entirely with tolls, but using DUC revenues to supplement fuel taxes and other traditional highway revenues will stretch available highway revenues and enable transportation agencies to fund more projects.

Commingling funds from a portfolio of DUC facilities provides the sponsoring agency with added flexibility in funding facilities with different revenue potentials, at different stages of maturity, or in different geographic areas. This flexibility is especially important for new facilities funded by revenue bonds since traffic in the early years may not generate sufficient tolls to cover debt service requirements. Tolling agencies with older, more mature facilities with positive cash flows can use a portfolio approach. Florida's Turnpike Enterprise uses that approach to finance its toll facilities, given the financial strength of the Florida Turnpike's main corridor. The proceeds from tolls are allocated on a geographic basis to address concerns by patrons in one area that their tolls might be used to cross-subsidize patrons in another area.

Although mixing DUC revenues with other funds such as motor fuel taxes provides the greatest financial flexibility to the sponsoring agency, this flexibility comes at the cost of having to satisfy all requirements associated with the various funding sources being used. Funding for the initial Trans-Texas Corridor projects outside Austin, which includes dedicated toll revenues, State highway program funding, Transportation Infrastructure Finance and Innovation Act (TIFIA) loans, and private right-of-way donations, is an example of a mixed financing approach. In Maryland, DUC proceeds are not included in the State's transportation trust fund to ensure that the revenues are available to service the debt and satisfy the covenants associated with outstanding revenue bonds.

Equity for Users

As an additional revenue source, DUCs are considered by many stakeholders as double-charging for surface transportation facilities since users continue to pay motor fuel taxes. Defenders of DUCs point to higher service levels on tolled facilities as value for the added costs resulting from the imposition of DUCs.

Tolling of vehicles that do not meet the occupancy requirements for using high-occupancy vehicle (HOV) lanes (HOT lanes) and congestion-based variable pricing of express lanes have raised questions about equity for different socioeconomic groups. The higher the DUC, particularly when used as part of a variable pricing approach aimed at better managing travel demand and the resultant congestion, the greater the potential burden on lower income users. Some critics have dubbed HOT lanes "Lexus lanes" out of concern that the wealthy disproportionately benefit from these facilities. According to a 2000 study at California Polytechnic State University by Edward Sullivan, Continuation Study to Evaluate the Impacts of the SR 91 Value-Priced Express Lanes Final Report, however, express lane users come from all income levels.

Another equity concern is whether certain States or regions will benefit disproportionately from the ability to apply DUCs because they have the greatest potential for success in generating revenues and managing system congestion in more densely populated urban areas. Potentially, fast-growing and higher income areas of the Nation will have a distinct fiscal advantage in funding their transportation needs through the application of DUCs as compared to more rural areas.

Patrons of DUC facilities where proceeds are diverted to pay for other transportation programs, projects, services, or modes may perceive such diversions as inequitable. In certain areas of the country, these users have convinced their elected officials to institute measures to ensure that the DUC proceeds remain within the community in which they are generated.

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Cultural Challenges Within Agencies

The introduction of DUCs by State DOTs will inevitably affect the evolution of those agencies, in terms of their program orientation, culture, policies, practices, accountability, and critical success factors. Changing the status quo is inherently difficult for organizations that have become used to a certain way of doing business, particularly if the status quo has a long history of success.

For the first 35 years of the interstate highway program, the Federal Highway Trust Fund provided such a high proportion of the revenue for building interstates that States were eager to participate and quite willing to model their programs after Federal rules, regulations, policies, and procedures. During this period of highway development, the Federal-aid program became a reliable source of program guidance and project funding. Over time, a significant private highway construction industry developed. Later, as the highway program continued to grow and mature, State DOTs began to outsource more and more of their project design work as well. With the parameters of the program fully defined and the roles of stakeholders specified, an institutional framework evolved that produced a culture of standardized processes. As a result, the highway programs in many States are largely characterized by projects that meet Federal transportation and environmental planning criteria, receive at least partial funding through annual appropriations from the Federal Highway Trust Fund, are financed on a pay-as-you-go basis as Federal-aid funds became available, and are delivered through a highly controlled and rigid design-bid-build contracting process.

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Given the nature of the funding mechanisms, State transportation agencies pay particular attention to two factors: committing the full allocation of Federal-aid funding appropriated each year and making sure that contracts for all planned construction projects are awarded on schedule. These two factors ensure that no available Federal-aid funds for which the State is eligible are left unclaimed and that the bulk of the highway program for that year is committed so that the highway construction industry can commit its resources with assurance. As funding has become more constrained relative to needs, State transportation agencies are paying more attention to such performance factors as schedule and budget conformance.

Toll authorities have a somewhat different culture as a direct result of their reliance on DUCs as their primary funding source. Debt-based financing mechanisms cause the tolling entities to be more accountable for the operation, maintenance, and preservation of their facilities due to the requirements contained in bond covenants. These covenants are intended to protect the interest of the bondholders by ensuring that the funds derived from the tolls are used to keep the toll facility operating at a high level of performance to promote use by patrons who have a choice of tolled and nontolled facilities. Bond covenants also require that certain reserve funds be maintained to ensure that the tolling agency has sufficient financial resources to weather periods of higher expenditures or lower revenues due to changes in the economy and other causes beyond the control of the agency.

One impact of DUCs on tolling agencies is the importance of completing projects on schedule and adhering to the budget. Delayed projects defer the collection of toll revenues, while escalating project costs make it more difficult for the sponsoring agency to satisfy the various requirements of the bond covenants. Both factors can jeopardize the financial feasibility of a project relative to its revenue-producing capability, particularly in the early startup years. Bond rating agencies might downgrade the project or agency bonds, which would increase the cost of bonded debt, further exacerbating the financial consequences of project delays and overruns.

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Transportation agencies with a long history of DUC use consider the users of their facilities as customers who require added value through the condition and operation of the toll road, bridge, or tunnel to justify the added costs of using these facilities. "We offer transportation value in the form of safety, service, and convenience," says Jim Ely, executive director and chief executive officer of Florida's Turnpike Enterprise. "In the years that I've been the director of Florida's Turnpike, I have yet to meet a person who likes paying a toll. They do like what user-financed transportation offers--that is, better mobility for all." Toll facility operations are much more locally focused, and accountability is directly to the customers, bond holders, and the communities they serve.

In recent years, the older toll agencies have transitioned from being merely caretakers of debt-financed facilities, whose tolls were slated to be eliminated once the debt was paid off, to enterprising engines for capital investment in highway facilities that promote economic development in the areas they serve. This change has produced a culture of entrepreneurs who have become empowered to adopt more innovative approaches to improve cost effectiveness, to manage greater risks to achieve greater outcomes, and to take a longer term view that focuses on products over process.

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The application of DUCs by more traditional transportation agencies can promote a transition to a more customer-centered, production-driven, service-oriented, and accountable highway program. Agency leadership must consider that "business as usual" does not apply when DUCs are introduced. The whole notion of collecting fees directly from users poses design, engineering, operational, logistical, and financial management challenges to an agency not used to handling or managing these kinds of funds. State DOTs might be able to learn much from their counterparts in the tolling community.

In the near term, DUCs will not likely become the predominant revenue source for State or local transportation agencies. Even a modest percentage of DUC-based funding, however, will have profound effects on a State's entire highway program. Those State and local DOTs considering applying DUCs to selected highway facilities need to understand the cultural changes likely to occur with the imposition of DUCs, the nature and source of opposition to those changes, strategies for managing the transition, and the absolute necessity to develop added capabilities in such areas as financial management, operations, asset management and preservation, and performance tracking.

Public Acceptance

The prospect of new revenue sources has many stakeholders excited about the opportunity to recharge highway capital budgets and address transportation infrastructure needs that would otherwise take years, if not decades, to realize under the pay-as-you-go approach. As noted by Ely of Florida's Turnpike Enterprise, "I'm not a toll nut--I'm a transportation nut. If we had sufficient funding to meet the growing demand for mobility in our State, I would be the first in line to bulldoze all our toll plazas. That isn't the case today and won't be in the foreseeable future."

Many State DOTs are legitimately concerned about the institutional challenges and are cautious about the public's willingness to accept DUCs. Electronic tolling technology and the ability to provide open road tolling without tollbooths or toll collectors can remove a significant impediment to public acceptance. "People are more willing to pay DUCs if they receive value for their toll dollars and do not have to wait in line to pay the toll," says Patrick Jones, executive director of the International Bridge, Tunnel, and Turnpike Association.

Leaders in the highway design and construction industry also support DUCs when they recognize that tolls provide a means to expand and expedite highway improvement programs without jeopardizing traditional fuel tax-based programs.

The entire highway infrastructure industry and market is in a state of flux, with major changes already happening and even more significant changes on the way. As noted in the Fitch Ratings report of 2003, Redefining Toll Roads: An American Challenge: "U.S. toll roads are now entering into a remarkable period of redefinition, involving an active debate on how toll roads are organized, with whom they partner, and even how they perceive their identity."

The same can be said about the Federal-aid highway program and the State and local transportation agencies that administer the program. In both institutional arenas, the need for change is being driven by the widening gap between transportation infrastructure needs and the resources available to address those needs. DUCs may help State and local transportation agencies reduce and potentially close this widening gap, provided these agencies create an institutional environment that embraces new ways of meeting the transportation accessibility and mobility needs of America. "While the challenges are great and the needed changes may appear ominous, the risks of not changing are much greater with the Nation's economic viability at stake," says Ken Philmus, vice president and national director of toll services, DMJM Harris, and former director of the Tunnels, Bridges, and Terminals Division of The Port Authority of New York and New Jersey.

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Daniel L. Dornan is a senior consulting manager with AECOM Consult. He has 30 years' experience performing resource management and planning studies for public agencies and private companies responsible for transportation infrastructure. His expertise includes strategic/business planning, innovative financing/project delivery, and organization/operations improvement. He has degrees in civil and transportation engineering and business administration from Rensselaer Polytechnic Institute. He is a professional engineer registered in Florida, New York, Pennsylvania, and Virginia.

James W. March is team leader of the Industry and Economic Analysis Team in FHWA's Office of Policy. He manages a multidisciplinary team of economists, engineers, and transportation specialists who conduct a broad variety of transportation policy studies. In addition to work on public-private partnerships and highway finance, March manages studies of truck size and weight policy, highway cost allocation, the Federal role in surface transportation, and highway travel forecasts.

For more information, contact Dan Dornan at 703-645-6830 or daniel.dornan@dmjmharris.com.

This article is the first in a series on innovative financing that will run in the next few issues of PUBLIC ROADS. One of FHWA's priorities is encouraging the use of innovative financing.
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Author:Dornan, Daniel L.; March, James W.
Publication:Public Roads
Geographic Code:1USA
Date:Jul 1, 2005
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