NATSO Urges FHWA to Reaffirm that Experimental Projects May Not Circumvent Federal Prohibition on Commercial Rest Areas
NATSO on October 26, 2026, submitted comments on the Federal Highway Administration’s proposed modifications to the application processes for Special Experimental Project 15 (“SEP-15”), Special Experimental Project 16 (“SEP-16”), and Test and Evaluation Project 045 (“TE-045”). NATSO encouraged the Agency to incorporate clear, consistent language into the application instructions and evaluation process for all three programs, reaffirming that no experimental project may authorize activities expressly prohibited by federal law, including the longstanding restrictions on commercial activity within Interstate rights-of-way under 23 U.S.C. § 111.
Generally, NATSO does not have concerns with FHWA’s efforts to streamline and standardize the application processes for SEP-15, SEP-16, and TE-045. When properly implemented these programs can encourage innovation and private investment along the Interstate Highway System. SEP-15, for example, enables FHWA to evaluate innovative project delivery methods and public-private partnerships, including approaches involving contracting, research, environmental review, right-of-way acquisition, and project finance. The program can help identify unnecessary barriers and facilitate private investment.
It does not, however, supply freestanding authority to set aside Congress’s prohibition on commercial establishments within Interstate rights-of-way. In November 2017, Arizona Governor Doug Ducey requested SEP-15 authorization to experiment with commercially operated Interstate rest areas and separately urged DOT to work with Congress to remove the restriction under 23 U.S.C. § 111. FHWA rejected the request in January 2018.
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