TITLE 43.TRANSPORTATION

Part 1. TEXAS DEPARTMENT OF TRANSPORTATION

Chapter 2. ENVIRONMENTAL POLICY

Subchapter B. MEMORANDA OF UNDERSTANDING WITH NATURAL RESOURCE AGENCIES

The Texas Department of Transportation (department) proposes amendments to §2.21, concerning purpose, the repeal of §2.24, concerning memorandum of understanding with the Texas Historical Commission, and simultaneously proposes new §2.24, concerning memorandum of understanding with the Texas Historical Commission (THC).

EXPLANATION OF PROPOSED AMENDMENTS, REPEAL, AND NEW SECTION

Transportation Code, §201.607, requires the department to adopt a memorandum of understanding (MOU) with each state agency that has responsibilities for the protection of the natural environment, the preservation of the natural environment, or for the preservation of historic or archeological resources. Section 201.607 also requires the department to adopt the MOU and all revisions by rule and to periodically evaluate and revise the MOU. In order to meet the legislative intent and to ensure that historic and archeological resources are given full consideration in accomplishing the department's activities, the department has evaluated the MOU adopted in 1998 and finds it necessary to repeal existing §2.24 and simultaneously adopt new §2.24.

Section 2.21 is amended to update a statutory citation from Texas Civil Statutes to Transportation Code, §201.607, and to update the term "article" to "section."

The proposed new MOU between THC and the department satisfies the statutory requirement for reviewing and revising MOUs with resource agencies. It is also intended to replace the existing MOU, which has been in effect since December 13, 1998, with an MOU that streamlines THC's review of the department's projects and simultaneously allows THC to focus on those projects with significant historic and archeological concerns. The proposed MOU has many new provisions and procedures that were developed based on experience gained from numerous projects that the department has submitted and THC has reviewed since the December 13, 1998. MOU was executed.

This proposed new MOU seeks to expedite the project review process by classifying and specifying new responsibilities of each agency relating to the review of a department project. Another objective of this MOU is to focus THC resources on projects that may adversely affect significant historic and archeological resources.

The proposed new MOU seeks to meet these objectives by evaluating and classifying projects to better determine the appropriate level of review. The MOU identifies certain types of projects that experience has shown are unlikely to have any adverse effects to historic or archeological resources. These projects include routine maintenance activities (e.g., repaving existing roads) and other common projects that are unlikely to cause negative effects (e.g., landscaping, and constructing bike and pedestrian paths). Under the proposed MOU, these and similar projects will not require THC review.

Another category of projects warrant review, but not necessarily automatic individual coordination with THC. For these projects, the department is required to investigate, evaluate, and document information that demonstrates that no individual coordination is automatically required in advance under the criteria specified in the MOU. If the department's evaluation determines that individual coordination is appropriate for a given project, that project would move to the next higher level of review, individual coordination. Under this MOU, the department must utilize personnel from its staff or consultants that meet the federal and state standards for historic architects, historians, and archeologists that review transportation projects.

Although there are expedited procedures for projects identified as not requiring THC review and projects that the department is required to evaluate and document as not requiring individual coordination with THC, there are criteria and procedures in the MOU to ensure that appropriate investigation, evaluation, and classification occur. The MOU requires the department to individually coordinate projects with THC in cases where the evaluation shows that the project would have an adverse effect on historic and archeological resources. The MOU provides for THC oversight of this process. Under the MOU, the department is required to submit a quarterly report to THC. THC may also audit the department or request information about any given project at any time.

The next level of review is for those projects that require individual coordination. For these projects, the MOU requires the department to provide all the information that is needed for a comprehensive review of the project by THC. THC has agreed to review the information within 20 days.

In some cases, a project potentially affecting a significant archeological or historic site may be resolved with only one submission to THC. For example, The department could submit an effects evaluation that shows to THC's satisfaction that the site will be avoided. In other cases, the department will be required to provide additional information, mitigation proposals, permit applications, final reports, etc.

One goal of the MOU is to enable THC staff to spend more time on these larger or more complex projects that require more extensive individual review, evaluation, and negotiation. It is anticipated that the expedited review of projects that do not require individual coordination will allow THC staff to have the time available to perform these more intense reviews of projects individually coordinated.

It is also the goal of the MOU to use THC resources for early evaluation of large projects (e.g., projects involving construction of the Trans Texas Corridor) that are considered to potentially have adverse effects on historic and archeological resources. The department hopes to avoid or minimize any adverse effects from large projects through early coordination and collaboration with THC in the project planning process.

SUBSECTION BY SUBSECTION ANALYSIS OF PROPOSED NEW SECTION

Subsection (a) states the purpose of the MOU. This subsection expresses both agencies' intent to make the project review process more efficient.

Subsection (b) cites the authorities that allow for the drafting of a MOU to increase effective coordination between agencies. To implement provisions of the MOU, it is the express intent of the department and THC to enter into a programmatic agreement that adopts similarly streamlined procedures for projects that are federally assisted, permitted, or licensed.

Subsection (c) defines some of the words and terms used in this MOU. These definitions are intended to clarify the scope and nature of evaluations and reviews conducted under this MOU.

Subsection (d) sets forth the responsibilities of the department and THC as they relate to this MOU. It includes a commitment by the department to establish a funding agreement to support THC's commitment to streamlined project review, and a commitment by THC to use that funding agreement only for department projects and in the most efficient manner that achieves streamlining.

Subsection (e) provides for early coordination between the department and THC. This subsection expresses THC and department agreement that routine roadway maintenance projects do not require review by THC. This subsection expresses both agencies' commitment to identify and apply a broad range of strategies to comply with the Antiquities Code of Texas, Natural Resources Code, Chapter 191 (ACT). This subsection specifies how the department will ensure that the public and interested parties, including federally recognized Indian tribes, will be afforded the opportunity to provide input about potential impact to historic properties. This subsection provides for independent evaluation of public comments or new information by the department and THC.

Subsection (f) states the circumstances under which Antiquities Permits will be required for archeological investigations to be performed in conjunction with the department's projects. This subsection expresses the procedures the department will use to determine if archeological sites are present and, if present, to determine their significance, and coordinate adverse effects with THC. If no sites are found or if sites are found but are not recommended for further work, this subsection states that the projects will not require individual review and will be reported to THC as part of a quarterly report.

If a project is individually coordinated with THC, this subsection specifies that THC will have 20 days to complete review of the project and its potential effects on significant sites. Depending on the project and site, the department may be required to make additional submissions or take additional actions. This subsection also provides for alternative mitigation and public outreach efforts, where appropriate. This provision would allow the department, subject to THC approval, to develop mitigation strategies that address specific stakeholder concerns and unusual circumstances. This subsection also sets forth the process that the department and THC will use when archeological sites are found after award of contract. Finally, this subsection outlines how artifacts will be recovered and curated.

Subsection (g) pertains to coordination procedures for non-archeological historic sites. This subsection identifies the types of projects that do not require individual coordination with THC, and specifies how the department will make that determination. A quarterly report of projects that do not require individual coordination will be provided to THC. THC reserves the right to audit such projects to ensure that the department has made appropriate determinations. In addition to the quarterly report and audit provisions, THC may request information on a given project while the department is evaluating and making the determinations authorized by this MOU.

Subsection (h) specifies how non-archeological historic-age properties will be identified and evaluated. This subsection establishes the procedures that will be used to identify and evaluate historic-age bridge-class structures.

Subsection (i) specifies how the department will assess and mitigate effects of its projects on non-archeological historic properties, particularly historic bridges, and how the department will coordinate those effects with THC. This subsection specifies that THC will have 20 days to complete its review of the department's assessment of effects and proposed mitigation. Depending on the project and site, the department may be required to make additional submission or take additional action. If THC objects to the department's assessment of effects or proposed mitigation and the dispute cannot be resolved, §2.24(p) would govern dispute resolution. Subsection (p) applies not only to effects assessments and mitigation, but also to other situations such as if THC does not grant the department required approvals.

Subsection (j) specifies the documentation that the department must maintain in its files for each project that is included in the quarterly report, and the documentation that the department must submit to THC for projects that are individually coordinated with THC. The period allotted for THC to respond to report submittals is 20 days.

Subsection (k) requires that applicable environmental documents summarize the department's efforts to comply with its responsibilities to identify historic and archeological sites, determine project-specific effects on such properties, and minimize or mitigate those effects.

Subsection (l) allows the department to make a commitment to complete its archeological responsibilities prior to any construction-related impacts if right of entry to private land is denied during environmental studies. This provision is intended to address cases where the department is denied access during preliminary or early surveys or studies. Although this provision would be applicable if the department ultimately acquired the property, it is not intended to place any obligation on the department to do so.

Subsection (m) describes that the department may use the procedures of this MOU, which has been developed with THC specifically for department projects, instead of the generic requirements of Title 13, TAC, Part 2.

Subsections (n) and (o) allow THC to audit the department's project files for projects carried out under this MOU, and to require an annual meeting of appropriate staff of both agencies.

Subsection (p) sets forth the procedures for dispute resolution. The MOU requires the department to submit numerous documents to THC. Depending on the particular document, THC review, comment, concurrence, or approval may be required. This subsection specifies the procedures that will be used to resolve disagreements or disputes. To summarize these provisions, there is an opportunity for informal consultation on a disputed matter, followed by formal federal dispute resolution procedures or an appeal under state law as provided in 13 TAC Chapter 27.

FISCAL NOTE

James Bass, Director, Finance Division, has determined that for each of the first five years the amendments, repeal, and new section as proposed are in effect, there will be fiscal implications for state government as a result of enforcing or administering the sections. The new section will require an expenditure ranging from approximately $63,500 to $77,500 annually from the State Highway Fund to provide funding to THC for additional staff resources. This funding is only to be used to ensure efficient and timely environmental review by THC of the department's projects. The expedited review procedures associated with this expenditure are expected to save the department resources by reducing the number of projects possibly delayed due to THC review. Those costs are expected to be off-set by the benefit of allowing routine projects to move forward in project development under a streamlined review process, and by reducing the review time for those projects where significant historic and archeological sites will be, or are anticipated to be, affected by the department's projects. The amendments will be administered using existing department staff. There are no anticipated fiscal implications for local governments as a result of enforcing or administering the amendments, repeal, or new section. There are no anticipated economic costs for persons required to comply with the sections as proposed.

Dianna F. Noble, P.E., Director, Environmental Affairs Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments, repeal, or new section.

PUBLIC BENEFIT

Ms. Noble has also determined that for each of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the amendments, repeal, and new section will be to maximize efficiency in completing the environmental review of the department's projects and to provide for a public process in completing those requirements. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments, repeal, and new section may be submitted to Dianna F. Noble, P.E., Director, Environmental Affairs Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on March 15, 2004.

43 TAC §2.21, §2.24

STATUTORY AUTHORITY

The amendments and new section are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §201.607, which requires that the department adopt memoranda of understanding with each agency that has responsibility for the protection of the natural environment, the preservation of the natural environment, or for the preservation of historic or archeological resources, and that these memoranda and all revisions be adopted as rules.

CROSS REFERENCE TO STATUTE: Transportation Code, §201.607.

§2.21.Purpose.

Transportation Code, §201.607 [ Texas Civil Statutes, Article 6673g ], requires the Texas Department of Transportation (TxDOT) to adopt a memorandum of understanding with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historical or archeological resources, and requires the department and each of the agencies to adopt the memoranda and all revisions by rule. This subchapter contains memoranda of understanding adopted by TxDOT to implement that section [ article ].

§2.24.Memorandum of Understanding with the Texas Historical Commission.

(a) Purpose.

(1) It is the policy of the Texas Department of Transportation (TxDOT) to:

(A) identify the environmental impacts of TxDOT transportation projects, to coordinate these projects with applicable state and federal agencies, and reflect these investigations and coordination in the environmental documentation for each project;

(B) base project decisions on a balanced consideration of the need for a safe, efficient, economical, and environmentally sound transportation system;

(C) receive input from the public through the public involvement process;

(D) utilize a systematic interdisciplinary approach as an essential part of the development process for transportation projects; and

(E) strive for environmentally sound transportation activities through appropriate avoidance, treatment or mitigation, where feasible and prudent, in coordination with appropriate resource agencies.

(2) In order to pursue this policy, the Texas Department of Transportation and the Texas Historical Commission (THC) have agreed to adopt this new Memorandum of Understanding (MOU), which will supersede the MOU which became effective on December 13, 1998.

(3) This MOU is entered into by THC and TxDOT in accordance with Government Code, §442.005 and §442.007, Natural Resources Code, §191.0525(f), and Transportation Code, §201.607, to adequately provide for coordination of projects with THC. It is the intent of this MOU to provide a formal mechanism for THC review of TxDOT projects that have the potential to adversely affect cultural resources in order to assist TxDOT in making environmentally sound decisions, and to develop with TxDOT a system by which information developed by TxDOT and THC may be exchanged to their mutual benefit. This MOU also provides for an efficient and streamlined review of TxDOT projects in keeping with state and national initiatives for environmental streamlining.

(b) Authority.

(1) Transportation Code, §201.607, directs TxDOT to adopt MOUs with appropriate environmental resource agencies, including THC. The rules for coordination of state-assisted transportation projects found in Subchapter C of this chapter (relating to Environmental Review and Public Involvement for Transportation Projects), underline the need for and importance of comprehensive environmental coordination for transportation projects.

(2) Transportation Code, §201.607(a)(5) also authorizes and contemplates other agreements necessary for the effective coordination of the review of the historic or archeological effect of highway projects.

(3) Provisions of this MOU may in part be implemented through a Programmatic Agreement (PA) among the Federal Highway Administration (FHWA), the Texas State Historic Preservation Officer (TSHPO), the Advisory Council on Historic Preservation (Council), and TxDOT. TxDOT and THC will seek to revise the existing PA, executed in 1995, to reflect the streamlined procedures contained in this MOU.

(c) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Antiquities Code of Texas (ACT)--The state statute (Natural Resources Code, Chapter 191) that designates the Texas Historical Commission as the legal custodian of all cultural resources, historic or prehistoric, within the public domain of the state, and as the body that issues antiquities permits, in accordance with Title 13, Part 2, TAC, concerning the Texas Historical Commission.

(2) Antiquities permit--A permit issued by the Texas Historical Commission in order to regulate the taking, alteration, damage, destruction, salvage, archeological survey, testing, excavation and study of state archeological landmarks including prehistoric and historic archeological sites, and the preservation, protection, stabilization, conservation, rehabilitation, restoration, reconstruction, or demolition of historic structures and buildings designated as a State Archeological Landmark or listed in the National Register of Historic Places.

(3) Area of potential effects--The geographic area or areas within which an undertaking may cause changes in the character or use of historic properties, as that term is defined in 36 CFR Part 800, if any such properties exist.

(A) The area of potential effects for archeological properties on federal undertakings will be confined to the limits of the proposed project right of way (including permanent and temporary easements), utility relocations, and project-specific locations designated by TxDOT.

(B) Unless TxDOT and THC in consultation determine a need for a wider area of potential effects, the area of potential effects for other properties on federal undertakings will be:

(i) 300 feet beyond the proposed right of way for projects constructed on new locations;

(ii) 150 feet beyond the proposed right of way for projects constructed in existing transportation corridors, including abandoned railroad lines.

(C) The area of potential effects for all non-federal undertakings will be confined to the limits of the proposed project right of way (including permanent and temporary easements), utility relocations, and project-specific locations specifically designated by TxDOT.

(4) Cultural resources--A general term referring to buildings, structures, objects, sites, and districts more than 50 years of age with the potential to have significance in local, state, or national history.

(5) Eligibility--A property's eligibility for the National Register of Historic Places as set forth in 36 CFR Part 60 and 36 CFR Part 800, or for designation as a State Archeological Landmark, as set forth in 13 TAC Chapter 26.

(6) Historic property--Any prehistoric or historic district, site, building, structure, or object which is included or eligible for inclusion in the National Register of Historic Places, as defined in 36 CFR Part 800 and 36 CFR Part 60, or meets the requirements for designation as a State Archeological Landmark as set forth in 13 TAC Chapter 26.

(7) Historic-age property--Any site, building, structure, or object that will be 50 years old or older in age at the time of the award of the construction contract.

(8) Impact evaluation--Field inspection by a qualified archeologist to determine the extent to which physical conditions affect the eligibility of known or unknown archeological deposits within the area of potential effects of the proposed project.

(9) National Register--The National Register of Historic Places (NRHP), which is the nation's inventory of historic places maintained by the U.S. Secretary of the Interior. (Historic properties included in or eligible for inclusion must meet National Register criteria for evaluation, as defined in 36 CFR Part 60.)

(10) Project specific location--The location of specific material sources (base material, borrow, sand pits, etc.) and other sites used by a construction contractor for a specific project.

(11) Quarterly report--A report that TxDOT submits to THC 20 days after the end of each quarter listing all projects for which TxDOT has documented that no historic properties are present in the project's area of potential effect, and those where the projects will have no adverse effects on historic properties as determined by background research and/or field investigation, and project review, as appropriate, that is used to fulfill TxDOT's reporting requirements under this MOU.

(12) State Archeological Landmark (SAL)--Archeological and historic-age properties that are designated or eligible for designation as landmarks as defined in Subchapter D of the Antiquities Code of Texas (ACT) and identified in accordance with 13 TAC Chapter 26.

(13) State Historic Bridge Inventory (SHBI)--An ongoing evaluation effort to determine the eligibility of historic-age bridges in Texas.

(d) Responsibilities.

(1) Texas Department of Transportation. The responsibilities of TxDOT pertain primarily to its functions as a transportation agency, and include:

(A) planning and designing safe, efficient, effective, and environmentally sensitive transportation facilities while avoiding, minimizing, or compensating for impacts to cultural resources to the fullest extent practicable;

(B) the timely and efficient construction of transportation facilities, in a manner consistent with approved plans, agreements and commitments that TxDOT has executed regarding the protection of historic properties;

(C) ongoing maintenance to provide safe, efficient, and environmentally sound transportation facilities for the traveling public;

(D) coordinating projects with THC through TxDOT's Environmental Affairs Division or its successor as established by TxDOT administration; and

(E) provide funding to THC to enable THC to implement measures to facilitate early coordination, streamlining and expedited review of TxDOT's transportation projects.

(2) Texas Historical Commission. The responsibilities of THC relate primarily to its functions as a cultural resource agency, and include:

(A) serving as the State Historic Preservation Office in Texas with responsibility under 36 CFR Part 800--the regulations implementing §106 of the National Historic Preservation Act (16 U.S.C. 470f);

(B) reviewing federally assisted, licensed, or permitted undertakings with the potential to affect properties included in or eligible for inclusion in the National Register of Historic Places;

(C) providing assistance to agencies in their efforts to comply with the §106 process;

(D) regulating the identification, disposition and management of State Archeological Landmarks which are affected by non-federal undertakings, as described in the Antiquities Code of Texas and 13 TAC Chapter 26;

(E) issuing permits for the taking, excavation, restoration, rehabilitation or study of State Archeological Landmarks as provided in ACT, §191.054 and §§191.091 - 191.098; and

(F) applying TxDOT's funding solely to the review of TxDOT's projects in a manner that most efficiently streamlines THC's effective review and early coordination.

(e) Early project planning for cultural resources.

(1) TxDOT and THC agree that routine roadway maintenance projects, by their nature and definition, do not require review by THC under 36 CFR Part 800 or 13 TAC Chapter 26. Such projects include, but are not limited to:

(A) installation, repair, or replacement of fencing, signage, traffic signals, railroad warning devices, safety end treatments, cameras and intelligent highway system equipment;

(B) landscaping;

(C) routine structural maintenance and repair of bridges, highways, railroad crossings, and rest areas;

(D) in-kind repair, replacement of non-historic lighting, signals, curbs and gutters, and sidewalks;

(E) crack seal, overlay, milling, grooving, resurfacing, and restriping;

(F) replacement, upgrade, and repair of safety barriers, ditches, storm drains, and culverts constructed after the depression-era period (i.e. after 1945);

(G) intersection improvements that require no additional right of way;

(H) placement of riprap to prevent erosion of waterway banks and bridge piers provided no ground disturbance is required;

(I) all maintenance work between a highway and an adjacent frontage road;

(J) installation of noise barriers or alterations to existing publicly owned buildings less than 50 years old, to provide for noise reduction except in potential or listed National Register districts;

(K) driveway and street connections;

(L) all work within interchanges and within medians of divided highways;

(M) acquisition of scenic easements unless the acquisition is from an historic property; and

(N) other kinds of undertakings jointly agreed to in writing by THC and TxDOT.

(2) TxDOT is committed to performing early identification efforts for cultural resources located within the area of potential effects of proposed transportation projects and initiating THC coordination during the early planning stages of these projects, when the widest range of alternatives is open for consideration.

(3) TxDOT is committed to implementing, in appropriate cases and as a part of early project planning and coordination, alternative methods, techniques, and other strategies that are reasonable and feasible and that will enhance efficiency in complying with cultural resource laws. These include, but are not limited to, programmatic approaches to coordination of selected types of cultural resources, evaluation of existing conditions affecting the integrity of cultural resources, geoarcheological research to assist in early planning and to reduce archeological liabilities, development of significance eligibility standards with THC, and development and implementation of alternative mitigation strategies. TxDOT may seek to utilize alternative strategies for procedures set forth in this MOU. Upon the written concurrence of THC, TxDOT may implement the alternative strategy in lieu of the procedures specified in this MOU.

(4) TxDOT is also committed to providing the public and interested parties with opportunities to provide input and express their views concerning potential project impacts to historic properties.

(A) TxDOT will ensure that cultural resource issues are incorporated into its regular public participation programs carried out under the National Environmental Policy Act (42 USC 4321-4347 et seq.), and §2.42 and §2.43 of this chapter (relating to Highway Construction Projects-Federal Aid, and Highway Construction Projects-State Funds), as far as practicable.

(B) TxDOT will also ensure that federally recognized Indian tribes (as specified in 36 CFR 800) are provided early project information and information on Native American sites that will be affected by TxDOT projects in order to provide comments.

(C) If concerns related to historic and archeological issues arise after the NEPA public involvement process is complete, or if new information about historic or archeological issues is found, TxDOT and THC shall independently re-evaluate their findings.

(5) Cultural resource investigations by consultants.

(A) TxDOT has the right to perform cultural resource investigations using staff or consultants who meet the professional standards of 13 TAC Chapter 26, and as required by 36 CFR Part 800.

(B) Cultural resource surveys, investigations, permit applications, and other work performed by consultants shall be coordinated with THC through TxDOT's Environmental Affairs Division or its successor as established by TxDOT administration.

(f) Procedures for coordination regarding archeological resources. Provided the work is completed in accordance with the provisions of this MOU, survey and eligibility testing of archeological resources performed by the archeological staff of TxDOT's Environmental Affairs Division is authorized under this MOU and will not be considered an operation that might require an antiquities permit under ACT, §191.054 or §191.131. All other archeological investigations shall require an antiquities permit.

(1) Identification.

(A) TxDOT will undertake sufficient background research to determine which proposed projects require archeological surveys. Background research may include a search of records and files at THC and/or the Texas Archeological Research Laboratory (TARL), gathering information on soils, a geomorphic history of the projects, Texas Historic Sites Atlas, and impact evaluations.

(B) Based on the results of background research, TxDOT will identify projects requiring archeological investigation for archeological resources.

(C) TxDOT will prepare a list of projects which do not require individual coordination for archeological sites, and will provide THC with a list of such projects, including those where impact evaluations were performed, on a quarterly basis or upon request by THC.

(D) Eligibility determinations that TxDOT performs under this MOU may not require field investigations if sufficient background information exists to demonstrate that the portion of the site to be affected does not have potential research value.

(E) Eligibility determinations that TxDOT performs under this MOU may be based on impact evaluation if it can be demonstrated that the portion of the site to be affected does not have sufficient integrity to be eligible.

(2) Archeological surveys.

(A) All projects, and portions of projects, recommended for survey by TxDOT during background research will be subjected to archeological survey using the methods in conformance with 36 CFR Part 800 and THC's Archeological Survey Standards, or with other appropriate methods. TxDOT reserves the right to depart from published survey standards in cases where it deems appropriate. THC reserves the right to review non-standard procedures for their adequacy.

(B) An archeological survey will be conducted by a TxDOT professional archeological staff member or other archeologist who meets the state and federal standards. Surveys may be limited to an evaluation of existing impacts or stratigraphic integrity when these are sufficient to determine that any sites present are unlikely to be eligible.

(C) When the archeological survey has been completed, TxDOT will submit the results of the survey to THC:

(i) as part of a quarterly list of investigations where no sites were found, where sites were found but were not recommended for further work, or upon request by THC;

(ii) as an individual report when sites are present and recommended for further work; or

(iii) as an individual report when no further work is recommended, but THC comment is a desirable element of TxDOT's NEPA compliance.

(D) All TxDOT survey reports will include:

(i) details of the results of the survey, including project description, anticipated project impact, and existing disturbance in the project area;

(ii) environmental data on topography, soils, land use, survey methodology, survey results, and recommendations;

(iii) the project location plotted on 7.5' Series USGS quadrangle maps;

(iv) descriptions of any sites found;

(v) submission of electronic and paper copies of archeological site survey forms to TARL; and

(vi) recommendations regarding whether the site(s) merit archeological testing or archeological monitoring.

(E) THC will respond within 20 days of receipt of the TxDOT request for review of any survey results and recommendations. The response will include:

(i) a statement of concurrence or nonconcurrence with the results of the survey and its recommendations; and

(ii) any other comments relevant to the archeological resources which could be affected by the project.

(F) TxDOT will summarize the results of the archeological survey and recommendations in the environmental document for the project, as far as practicable.

(3) Archeological eligibility testing phase.

(A) All sites and portions of sites recommended for eligibility testing by THC will be subject to archeological testing, using the methods agreed upon in writing by TxDOT and THC.

(B) THC may send a representative to observe any or all of the testing procedures.

(C) At the completion of testing, TxDOT will prepare a formal report of the results of testing.

(i) For sites affected by federal undertakings, the report will include recommendations regarding eligibility for the NRHP, as described in 36 CFR Part 60 and 36 CFR Part 800.

(ii) For sites affected by non-federal undertakings, the report will include recommendations regarding the eligibility of the site for designation as a State Archeological Landmark, in accordance with ACT, §191.091 and §191.092, and 13 TAC Chapter 26.

(iii) TxDOT may submit interim reports on testing to expedite project review, provided such reports contain sufficient information on which to base recommendations of eligibility and, if relevant, additional work. Interim reports shall not be substituted for final reports.

(D) TxDOT will send the testing report to THC with a request for review.

(E) THC will respond to the report within 20 days of receipt of TxDOT's request for review and in accordance with 36 CFR Part 800. The response will include:

(i) a statement of concurrence or nonconcurrence with the results of the archeological testing and recommendations contained in the TxDOT request for review; and

(ii) a determination of the site's eligibility for listing in the National Register of Historic Places, or for designation as a State Archeological Landmark.

(F) When appropriate, TxDOT will work with THC and Principal Investigators to develop public educational outreach projects associated with significant test level investigations.

(4) Archeological excavation/data recovery.

(A) All sites and portions of sites determined to be eligible for the NRHP (for federal undertakings) or eligible for designation as a State Archeological Landmark (for non-federal undertakings) based on consultation with THC, will be subjected to data recovery in conformance with a data recovery plan that has the concurrence of THC when avoidance is not feasible and provided that they are not eligible for preservation in place.

(B) TxDOT, in consultation with THC, will develop a data recovery plan for each eligible site on a case-by-case basis, in accordance with 36 CFR Part 800 for federal undertakings and ACT for non-federal undertakings. Final data recovery plans must be approved by THC prior to their implementation.

(C) Results of data recovery will be published as required by 36 CFR Part 800 and/or ACT. To expedite transportation project planning, design, and construction, interim reports on data recovery may be used for consultation to determine whether field work commitments have been fulfilled. Interim reports shall not be substituted for final reports.

(D) All data recovery will be performed under an antiquities permit.

(E) When appropriate, TxDOT and THC may agree to substitute alternative mitigation in lieu of data recovery.

(F) When appropriate, TxDOT will work with THC and Principal Investigators to develop public educational outreach projects associated with significant data recovery investigations.

(5) Archeological sites found after award of contract.

(A) When previously unknown archeological remains are encountered after award of contract, TxDOT will immediately suspend construction or any other activities that would affect the site.

(B) TxDOT will inform THC, and, if appropriate, federally recognized tribes, of discovery of previously unknown archeological remains and invite them to accompany TxDOT staff (or consultants) to the location within 48 hours of the discovery.

(C) TxDOT will evaluate the need, if any, for further investigations upon visiting the location of the discovery.

(D) If TxDOT determines that the discovery is an unrecorded archeological site, then TxDOT shall complete a State of Texas Archeological Site Data Form.

(E) If TxDOT determines that the site does not warrant further investigations, TxDOT will write to THC and, if appropriate, federally recognized tribes outlining its reasons and requesting concurrence within one business day of the visit to the discovery location. THC and, if appropriate, federally recognized tribes, will have two business days to respond. No response will be deemed to represent concurrence and construction will resume.

(F) If TxDOT determines that the site warrants further investigation, a scope of work for investigations will be developed within 24 hours of the visit to the site. The scope of work will be submitted to THC and appropriate federally recognized tribes who will have one business day to review and comment on the scope of work. No response will be deemed to represent concurrence and the scope shall be implemented. If comments are received, TxDOT and, if appropriate, FHWA shall take into account those comments and carry out the final scope of work. Upon completion of the approved work, construction may proceed as planned. A report of the investigations will be completed within the timeframe established by the scope of work and copies provided to all consulting parties.

(G) The procedures in this subsection shall be used to satisfy the permitting requirements of 13 TAC Chapter 26 for emergency permitting under 13 TAC §26.20(13) when conditions of natural or man-made disasters necessitate immediate action.

(6) Artifact recovery and curation.

(A) Artifact recovery.

(i) The type and quantity of artifacts to be recovered during testing and data recovery will be detailed in the scope of work and will be selected to address the research questions.

(ii) Artifacts or analysis samples (such as soil samples) that are recovered from survey, testing, or data recovery investigations by TxDOT or their contracted agents that address the research questions, must be cleaned, labeled, and processed in preparation for long-term curation unless the artifacts or samples are approved by THC for discard under 13 TAC Chapter 26.

(iii) To ensure proper care and curation, recovery methods must conform to 36 CFR Part 800, and 13 TAC Chapter 26.

(B) Artifact curation.

(i) TxDOT or its permitted contractor may temporarily house artifacts and samples during laboratory analysis and research, but upon completion of the analysis, artifacts and accompanying documentation must be transferred to a permanent curatorial facility in accordance with the terms of the antiquities permit.

(ii) Artifacts and samples will be placed at an appropriate artifact curatorial repository which fulfills 36 CFR Part 79, or the ACT, as approved by THC. When appropriate, TxDOT will consult with THC to identify for disposal collections or portions of collections that do not have identifiable value for future research or public interpretation. Final approval regarding the disposition of collections will be made by THC.

(iii) TxDOT is responsible for the curatorial preparation of all artifacts to be submitted for curation so that they are acceptable to the receiving curatorial repository and fulfill 36 CFR Part 79 and 13 TAC Chapter 26, as approved by THC.

(g) Early project development procedures for coordination regarding non-archeological historic properties. For purposes of this subsection and subsections (h), (i) and (j) of this section, the term historic properties will refer only to non-archeological historic properties.

(1) TxDOT and THC agree (for federal and non-federal projects) that certain types of undertakings do not require individual coordination. These undertakings are projects where no historic properties are present, or where the undertakings will have a minimal potential to affect historic properties if such are present in the area of potential effects. TxDOT will document these undertakings and include them in a quarterly report to THC unless they are the subject of individual coordination with THC. Examples of such undertakings include:

(A) Construction of bicycle and pedestrian lanes, paths, and facilities if not located in a listed or eligible National Register historic district;

(B) road widening within existing or minimal new right of way if not located in a listed or eligible National Register historic district;

(C) correction of roadway geometric and intersections within existing or minimal new right of way;

(D) bridge deck rehabilitation and stabilization; and

(E) other classes of undertakings jointly agreed to in writing by THC and TxDOT.

(2) Early in the project development process, TxDOT will determine whether federally assisted, licensed, or permitted transportation projects (federal projects) constitute undertakings with the potential to affect historic properties. In consultation with THC, it has been determined that individual coordination with THC is not necessary for projects where background research indicates that no historic properties are present or where they are present but the project will not have the potential to affect them. TxDOT will maintain documentation of efforts taken to reach this conclusion, and will include these projects in the quarterly report, or provide documentation upon request by THC.

(3) Early in the project development process, TxDOT will review its non-federal transportation improvements occurring on any lands of the State of Texas (non-federal projects) to determine whether they have the potential to affect historic properties under the terms of the ACT, and 13 TAC Chapter 26. Effects include the removal, alteration, or renovation of one or more contributing elements to a historic property. TxDOT and THC agree that individual coordination with THC is not necessary when no historic properties are present or when the project does not have the potential to adversely affect historic properties, provided TxDOT has complied with the provisions of this MOU. TxDOT will maintain documentation of efforts taken to reach this conclusion, and will include these projects in the quarterly report, or provide documentation upon request by THC.

(4) If TxDOT determines that a project has the potential to affect a historic property, TxDOT will then individually coordinate the project with THC in accordance with the provisions provided in this MOU.

(h) Identification and evaluation of historic properties.

(1) For non-federal and federal projects requiring individual THC coordination, TxDOT will identify historic properties within the project's area of potential effects. TxDOT will conduct a search of available records, including listings of the Texas Historic Sites Atlas, Recorded Texas Historic Landmarks, State Archeological Landmarks, and properties listed in the National Register. THC will render all reasonable assistance to TxDOT in performing record searches on historic properties.

(2) TxDOT will conduct field surveys for all projects that may have historic-age properties within their area of potential effects. These surveys will be conducted in order to determine if historic properties are present.

(3) If the identification efforts reveal historic-age properties, TxDOT will evaluate the eligibility of each property to determine if the property:

(A) qualifies as a SAL as defined by ACT, §191.092(f), for non-federal projects; or

(B) is eligible for inclusion or listed in the National Register, for federal projects.

(4) If a non-federal or federal project has the potential to affect a historic-age bridge-class structure, the following procedures apply unless the structure is of a categorically excluded type as defined by SHBI criteria. Categorically excluded structures are generally not eligible bridges that have been widened, non-depression era simple span concrete box culverts and timber stringer bridges. There are exceptions to these exclusions and other categorically excluded structures may be added by written agreement between TxDOT and THC in the future.

(A) If a non-federal or federal project has the potential to affect a historic-age bridge-class structure that has not been included in the SHBI, as formally accepted by THC, TxDOT will assess the eligibility of the structure in consultation with THC.

(B) If a historic-age bridge-class structure has been determined not eligible, either under the SHBI or in individual consultation with THC, TxDOT will coordinate with appropriate local entities to determine if the structure has local interest or significance.

(i) If no local interest or significance is identified, TxDOT will add the project to the quarterly report.

(ii) If TxDOT or THC identifies local interest or significance in a structure, TxDOT will reassess the eligibility with THC. If TxDOT and THC concur that the bridge-class structure is still not eligible, TxDOT will document the project in the quarterly report.

(C) If a historic-age bridge-class structure has been determined eligible, either under the SHBI or in individual consultation with THC, TxDOT shall follow the procedures outlined in subsection (i) of this section, regarding assessing and mitigating effects on historic properties.

(D) If TxDOT has reason to believe that a bridge-class structure is no longer eligible, TxDOT will consult with THC to reassess the eligibility.

(E) If TxDOT and THC concur that the bridge-class structure is no longer eligible, TxDOT will document the project in the quarterly report.

(i) Assessing and mitigating effects on historic properties. TxDOT will assess the effects of projects on properties that qualify as SALs for non-federal projects and on properties determined to be listed or eligible for inclusion in the National Register for federal projects. TxDOT will then consult with THC using the following procedures.

(1) For a non-federal project, TxDOT will consult with THC to determine if a historic structures permit is required for any proposed removals, alterations, or renovations to state archeological landmarks or to properties for which THC will initiate an SAL nomination in accordance with 13 TAC §26.12 and ACT, §191.098.

(2) For a federal project, TxDOT will apply the criteria of effect and in the case of a determination of adverse effect will consult with THC in accordance with the provisions set forth in 36 CFR Part 800.

(3) For a project involving a bridge-class structure that TxDOT and THC concur is eligible, TxDOT shall evaluate the preservation options in the following order of preference: full vehicular use; reduced level of vehicular use, non-vehicular use at original site; relocation for vehicular use; relocation for non-vehicular use; or demolition. TxDOT will document the evaluation of each preservation option including identification of the preferred option with supportive reasoning, and will submit the documentation to THC.

(A) When an eligible bridge-class structure will be retained for non-vehicular use at the original site or relocated, TxDOT will provide THC with an agreement signed by the bridge-class structure owner that includes language that ensures maintenance of the bridge-class structure, and provides THC the opportunity to review and concur that current and future proposed work on the bridge-class structure, beyond normal maintenance, complies with the Secretary of the Interior's Standards for Rehabilitation.

(B) Upon receipt of complete documentation, THC shall have 20 days to review and comment on the project. TxDOT shall take THC comments into account in making decisions on the project involving the bridge-class structure.

(4) TxDOT will, to the maximum extent practicable, provide an early opportunity for the public and interested parties to receive information and to express their views on projects when a historic property may be negatively affected by a transportation project.

(5) TxDOT will also consult with THC to seek ways to avoid, minimize, or mitigate any negative effects on historic properties caused by federal and non-federal projects in accordance with the following procedures.

(A) Non-federal projects. TxDOT shall take THC comments into account when projects will have an adverse effect on historic properties.

(B) Federal projects. TxDOT will follow the consultation procedures set out in 36 CFR Part 800.

(j) Project documentation by TxDOT.

(1) THC may audit TxDOT project files for specific undertakings submitted in the quarterly report. Projects involving non-archeological properties that are submitted individually to THC or included in the quarterly report, will be documented by TxDOT and will include:

(A) a project description and scope, including project drawings, photographs, reports and other information where needed to clearly describe the proposed project;

(B) a map showing the location of the project and all historic-age properties within the APE of the project;

(C) a statement of the efforts and methodology used to identify historic-age properties in the project area;

(D) documentation on each identified property, including at least one photograph of the property, the address, if known, an architectural description, date of construction (estimated or known), an integrity assessment, and any known local, state, or national historical designations;

(E) the results of any coordination with interested parties concerning the eligibility of identified historic-age properties;

(F) the results of TxDOT's determination of eligibility for each identified historic-age property; and

(G) TxDOT's assessment of potential project effects on historic properties, including evaluations, reports and other documentation relevant to the determination of effect.

(2) If the project is submitted to THC for review of non-archeological properties, THC will respond within 20 days of receipt of complete documentation and TxDOT's request for review as follows.

(A) For a non-federal project, THC's response will indicate whether the project will require a historic structures permit for an SAL, whether THC intends to initiate SAL nomination of a property not previously designated as an SAL, or if THC has knowledge that another party intends to initiate SAL nomination in accordance with 13 TAC §§26.11, 26.12 and 26.22, and ACT, §191.098. If THC does not respond within 20 days, TxDOT will assume that THC concurs with TxDOT's determination regarding historic-age property eligibility or project effects, and TxDOT will proceed with the project in accordance with the procedures required in this MOU.

(B) For a federal project, all coordination with THC will follow the provisions of 36 CFR Part 800 and the PA between TxDOT, FHWA, and THC.

(3) Projects involving archeological properties that are submitted individually to THC or included in the quarterly report will be documented by TxDOT in the manner described in this paragraph. THC may audit TxDOT project files for specific undertakings submitted in the quarterly report. For archeology, project documentation will consist of a statement for "no survey" or a report of an archeological impact evaluation or an archeological survey report. Each project at a minimum will include:

(A) a description of the project;

(B) a project location map;

(C) information about soils and geology in the project location, as appropriate;

(D) information on previously recorded archeological sites in the project location;

(E) level of effort for identification of archeological sites; and

(F) results and recommendations.

(k) Environmental document and public involvement. TxDOT will summarize information on its efforts to identify archeological sites and historic properties, to determine the effects of projects on archeological sites and historic properties, and to mitigate any negative effect on these sites or properties in the environmental document, if one is prepared, and will include this information in public involvement activities to the maximum extent practicable.

(l) Denial of access. In cases where access to private land for conducting archeological survey is denied prior to the approval of the environmental document, TxDOT will make a commitment to complete testing, evaluation of site eligibility, or data recovery prior to any construction related impacts.

(m) MOU to govern TxDOT procedures. TxDOT satisfies applicable THC requirements if it utilizes the procedures of this MOU in lieu of other THC procedures. In cases where TxDOT is utilizing this MOU in lieu of other THC procedures, TxDOT must follow the requirements of this MOU.

(n) THC audit. THC may audit TxDOT project files for specific undertakings carried out under this MOU.

(o) Annual meeting. TxDOT and THC staff will meet annually to discuss topics of mutual interest.

(p) Dispute resolution.

(1) If THC and TxDOT cannot reach agreement on any plans or actions carried out pursuant to this MOU, THC and TxDOT will consult to resolve the objection.

(2) If THC and TxDOT cannot reach a compromise solution or otherwise resolve the objection through consultation, either TxDOT or THC may choose to invoke the dispute resolution provisions which are set forth in paragraph (3) of this subsection.

(3) When these dispute resolution provisions are invoked, if TxDOT and THC cannot resolve their disagreement, the two agencies will resolve their dispute in accordance with the procedures established under state and federal rules.

(A) Federal undertakings will follow the dispute resolution procedures as stipulated in 36 CFR Part 800.

(B) Non-federal projects will follow the appeal procedures provided in 13 TAC Chapter 27.

(q) Review of MOU. This memorandum shall be reviewed and updated as provided by law or by agreement between the parties.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 30, 2004.

TRD-200400601

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: March 14, 2004

For further information, please call: (512) 463-8630


43 TAC §2.24

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Transportation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

STATUTORY AUTHORITY

The repeal is proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §201.607, which requires that the department adopt memoranda of understanding with each agency that has responsibility for the protection of the natural environment, the preservation of the natural environment, or for the preservation of historic or archeological resources, and that these memoranda and all revisions be adopted as rules.

CROSS REFERENCE TO STATUTE: Transportation Code, §201.607.

§2.24.Memorandum of Understanding with the Texas Historical Commission.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 30, 2004.

TRD-200400602

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: March 14, 2004

For further information, please call: (512) 463-8630


Chapter 5. FINANCE

Subchapter E. PASS-THROUGH TOLLS

43 TAC §§5.51 - 5.59

The Texas Department of Transportation (department) proposes new Subchapter E, §§5.51 - 5.59, concerning pass-through tolls.

EXPLANATION OF PROPOSED NEW SECTIONS

House Bill 3588, 78th Legislature, Regular Session, 2003, enacted Transportation Code, §222.104. This section authorizes the department to enter into an agreement with a public or private entity to provide for the payment of pass-through tolls as reimbursement for the construction, maintenance, or operation of a toll or non-toll facility on the state highway system by a public or private entity. A pass-through toll is defined by the statute as a per vehicle fee or a per vehicle-mile fee that is determined by the number of vehicles using a facility.

This new program offers the department a new method of financing needed highway projects. It also offers local interests an opportunity to expedite the development of a highway that they desire, but that the department is currently unable to fund. The developer of the project is responsible for building the facility with its own funds, and has the assurance from the department that the state will repay the developer through a payment based on the number of vehicles using the facility or the vehicle miles traveled. If use of that facility is high, typically as believed by the developer, then the developer will be paid back at a quicker rate. If traffic is lower than projected, repayment will occur over a longer period.

The proposed rules prescribe the policies and procedures governing the department's implementation of Transportation Code, §222.104.

Section 5.51 states the purpose of the subchapter, which is to implement Transportation Code, §222.104.

Section 5.52 defines words and terms used in the subchapter.

Section 5.53 describes how a developer can submit a proposal to the department. To allow the department and the Texas Transportation Commission (commission) to properly consider the merits of a proposal and consider the criteria described in §5.54, the proposal must include: a description of the project; a statement of the benefits of the project; a proposed project development and implementation schedule; a description of the qualifications and experience of the developer; if available, a proposed pass-through toll payment schedule; and a statement indicating whether the developer intends for the project to be tolled, and, if the developer intends for a tolled project to be first opened to traffic as a non-tolled highway, the approximate date on which the highway will begin to be tolled.

Section 5.54 lists the factors the commission will consider when deciding whether to approve a proposal and authorize the department to negotiate an agreement. To help ensure that a proposal is beneficial to the State of Texas, the commission will consider the financial benefits of the proposal. Consistent with the department's historical practices, the commission will consider local support for the project. To help ensure that the project will benefit the state's transportation system, the commission will consider whether the project is in the department's Unified Transportation Program, the extent to which the project will relieve congestion on the state highway system, and the compatibility of the proposed project with existing and planned transportation facilities. To help promote public health, and consistent with state policy, the commission will consider potential benefits to regional air quality that may be derived from the project. To help ensure that a private developer will deliver a quality facility, the commission will consider the qualifications and experience of the proposer to accomplish the work.

Section 5.55 provides a competitive process for proposals submitted by private entities, if the proposal has been approved by the commission under §5.54. The department will publish notice in the Texas Register and one or more newspapers for the purpose of soliciting competing proposals. The section sets out a competitive selection process very similar to the unsolicited proposal process the commission has prescribed for comprehensive development agreements. This process ensures fair competition that will allow the department to select the proposal with the best value to the state.

Section 5.56 provides that the department will submit a summary of the final terms of a successfully negotiated pass-through toll agreement to the commission. The commission may authorize the department to execute the agreement if it finds that the agreement is in the best interest of the state, and that the project is compatible with existing and planned transportation facilities and furthers state, regional, and local transportation plans, programs, policies, and goals. This section is intended to provide another level of oversight to ensure that the result of the negotiations is positive for the state and for transportation.

Section 5.57 describes the policies governing the payment of pass-through tolls. The department will reimburse the developer, through the payment of annual pass-through tolls, an amount equal to the department's estimate. The department's estimate will be developed or updated after receipt of the proposal. It is an estimate of what it would cost the department to construct the project. Payment of this amount will ensure that the developer is not overcompensated for the work. The commission may direct the department to reimburse the developer an amount less than the estimate if the project's estimated benefits to mobility do not warrant full reimbursement or the construction will result in a significant economic gain to the developer. This policy is intended to ensure that the public's interest is safeguarded. The commission may also direct the department to reimburse the developer an amount less than the estimate if the developer proposes to share in the cost of the project. The commission may direct the department to reimburse the developer an amount greater than the estimate if the commission determines there will be a financial benefit to the state, through the avoidance of inflation, as a result of the earlier completion of the project. The department would pay this additional amount if the project was developed using traditional methods. Accordingly, the increased payment to the developer reflects what it would cost the department to construct the project if a pass-through toll agreement was not used, and ensures that the developer is not overcompensated for the work. The amount of reimbursement above the estimate may not be more than the amount of the financial benefit determined by the commission.

Section 5.57 provides that the payment schedule will be based on the department's traffic projections and a contract period to be negotiated between the department and the developer. The payment schedule may include a maximum and minimum annual amount. A guaranteed minimum will assist a developer in arranging financing and help ensure that it gets reasonable compensation for delivering a needed asset. A maximum payment will ensure that the department is not required to expend an amount of funds in a way that could jeopardize funding for higher priority projects.

Section 5.57 provides that the developer is responsible for cost overruns unless the department agrees to share identified cost overruns. This policy provides some flexibility for the parties to share certain identified risks in order to prevent an unjust result, yet places the primary responsibility on the developer. To provide an incentive for developers to participate in the program and reward them for innovative construction, the section also provides that the developer is not required to repay the department the difference between the actual costs and the amount designated in the agreement.

Section 5.57 provides that if traffic volume exceeds projections, the department will not be responsible for annual payments above the maximum amount designated in the agreement. If traffic volume is less than projected, the department will pay at least the minimum amount designated in the agreement. If traffic volume exceeds projections, the department may agree to reduce the time period in which the developer is reimbursed the amount designated in the agreement. If traffic volume is less than projections, the term of the agreement will be extended until the developer is reimbursed the amount designated in the agreement. This policy places the burden on the developer to attract traffic, complete construction of the facility, and keep the facility open by providing quality construction. It also allows for minimum and maximum payments to provide for the necessary flexibility discussed previously.

Section 5.58 describes the responsibilities of the developer in developing and constructing a facility. An environmental review must be completed in accordance with the commission's rules governing department transportation projects. The facility must be designed and constructed in accordance with department standards and criteria unless exceptions are approved by the executive director.

Section 5.59 provides that a pass-through agreement may provide for a developer to operate a highway. A developer may operate a highway that it has constructed. A developer may also propose to operate an existing state highway. Except as provided in the agreement, the developer is responsible for performing all of the work required to operate the highway. In performing work, the developer must meet or exceed the most current Texas Maintenance Assessment Program minimum rating requirements for interstate highways as established by the commission. A developer may receive approval to use alternative maintenance standards if the executive director determines that the alternative standards are sufficient to protect the safety of the traveling public and protect the integrity of the transportation system. This section ensures proper maintenance and operation while providing some flexibility for the developer to be innovative.

FISCAL NOTE

James Bass, Director, Finance Division, has determined that for each of the first five years the new sections as proposed are in effect, there will be fiscal implications for state or local governments as a result of enforcing or administering the new sections. The state will be delaying the expenditures for needed highway projects while local governments will be expending funds to build these projects with the assurance of being reimbursed at a later date. The department cannot estimate the fiscal impact since that would depend on the number and nature of pass-through toll agreements executed under the new sections. There are no anticipated economic costs for persons required to comply with the sections as proposed.

James Bass, Director, Finance Division has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the new sections.

PUBLIC BENEFIT

James Bass has also determined that for each of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the new sections will be the expedited development of needed highway projects. There will be no adverse economic effect on small businesses.

PUBLIC HEARING

Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed new sections. The public hearing will be held at 9 a.m. on February 24, 2004, in the first floor hearing room of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas and will be conducted in accordance with the procedures specified in 43 TAC §1.5. Those desiring to make comments or presentations may register starting at 8:30 a.m. Any interested persons may appear and offer comments, either orally or in writing; however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views and identical or similar comments through a representative member when possible. Comments on the proposed text should include appropriate citations to sections, subsections, paragraphs, etc. for proper reference. Any suggestions or requests for alternative language or other revisions to the proposed text should be submitted in written form. Presentations must remain pertinent to the issues being discussed. A person may not assign a portion of his or her time to another speaker. Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or Braille, are requested to contact Randall Dillard, Director, Public Information Office, 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-8588 at least two working days prior to the hearing so that appropriate services can be provided.

SUBMITTAL OF COMMENTS

Written comments on the proposed new sections may be submitted to James Bass, Director, Finance Divisions, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on March 15, 2004.

STATUTORY AUTHORITY

The new sections are proposed under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §222.104, which authorizes the commission to adopt rules necessary to implement that section relating to pass-through tolls.

CROSS REFERENCE TO STATUTE: Transportation Code, §222.104.

§5.51.Purpose.

Transportation Code, §222.104, authorizes the Texas Department of Transportation to enter into an agreement with a public or private entity that provides for the payment of pass-through tolls to the public or private entity as reimbursement for the construction, maintenance, or operation of a toll or non-toll facility on the state highway system by the public or private entity. This subchapter prescribes the policies and procedures governing the department's implementation of Transportation Code, §222.104.

§5.52.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Commission--The Texas Transportation Commission.

(2) Department--The Texas Department of Transportation.

(3) Department estimate--An estimate of what it would cost the department to complete the work proposed by the developer. The estimate is developed or updated by the department after receipt of a developer's request and prior to the time the department executes an agreement with the developer.

(4) Developer--The public or private entity that enters into a pass-through toll agreement with the department under this subchapter for the construction, maintenance, or operation of a state highway.

(5) Environmental Permits, Issues, and Commitments (EPIC)--Any permit, issue, coordination, commitment, or mitigation obtained to satisfy social, economic, or environmental impacts of a project, including, but not limited to, sole source aquifer coordination, wetland permits, stormwater permits, traffic noise abatement, threatened or endangered species coordination, archeological permits, and any mitigation or other commitment associated with any of those issues.

(6) Executive director--The executive director of the department or the executive director's designee not below district engineer, division director, or office director.

(7) Operation--Includes maintenance.

(8) Pass-through toll--A per vehicle fee or a per vehicle-mile fee that is determined by the number of vehicles using a highway.

§5.53.Proposal.

(a) A governmental entity authorized to finance, construct, maintain, or operate a state highway or a private entity may submit in writing to the department a proposal for a project to be developed under a pass-through toll agreement. The proposal must include:

(1) a description of the project, including the project limits, connections with other transportation facilities, and a description of the services to be provided by the developer;

(2) a statement of the benefits anticipated to result from completion of the project;

(3) a description of the local public support for the project and any local public opposition;

(4) a proposed project development and implementation schedule;

(5) a description of the entity's experience in developing highway projects, if the proposer is a public entity;

(6) complete information concerning the experience, expertise, technical competence, and qualifications of the proposer and of each member of the proposer's management team and of other key employees or consultants, including the name, address, and professional designation of each member of the proposer's management team and of other key employees or consultants, and the capability of the proposer to develop the proposed projects, if the proposer is a private entity;

(7) if available, a proposed pass-through toll payment schedule; and

(8) a statement indicating whether the developer intends for the project to be tolled and, if the developer intends for a tolled project to be first opened to traffic as a non-tolled highway, the approximate date on which the highway will begin to be tolled.

(b) If requested, and unless prohibited by law, the department will release to the public a proposal submitted under this section.

§5.54.Commission Approval to Negotiate.

The commission may authorize the executive director to negotiate an agreement under this subchapter or, if the proposer is a private entity, authorize the department to solicit competitive proposals under §5.55 of this subchapter, after considering the:

(1) financial benefits to the state;

(2) local public support for the project;

(3) whether the project is in the department's Unified Transportation Program;

(4) the extent to which the project will relieve congestion on the state highway system;

(5) potential benefits to regional air quality that may be derived from the project;

(6) the compatibility of the proposed project with existing and planned transportation facilities;

(7) the entity's experience in developing highway projects, if the proposer is a public entity; and

(8) the qualifications of the proposer to accomplish the proposed work, if the proposer is a private entity.

§5.55.Proposals from Private Entities.

(a) If the commission approves the further evaluation of a proposal of a private entity under §5.54 of this subchapter, the department will publish notice of that decision and provide an opportunity for the submission of competing proposals.

(b) The department will publish a notice in the Texas Register and in one or more newspapers of general circulation. The notice will state that the department has received a proposal under this subchapter, that it intends to evaluate the proposal, that it may negotiate a pass-through toll agreement with the proposer based on the proposal, and that it will accept for simultaneous consideration any competing proposals that the department receives in accordance with this subchapter within 45 days of the initial publication of the notice in the Texas Register , or such additional time as authorized by the commission. In determining whether to authorize additional time for submission of competing proposals, the commission will consider the complexity of the proposal.

(c) The notice will summarize the proposed project and identify its proposed location. The notice will also specify the general criteria that will be used to evaluate all proposals and the relative weight given to the criteria. Specific evaluation criteria will be set forth in the request for proposals. The criteria will, at a minimum, include the factors listed in §5.54 of this subchapter, the proposer's qualifications and technical competence, and an analysis of the proposer's project implementation schedule.

(d) A proposal submitted in response to a notice must contain the information required by §5.53 of this subchapter.

(e) The original proposer may submit a revised proposal in response to a notice.

(f) Upon expiration of the 45-day period, or such additional time as authorized by the commission, the department will evaluate the proposal of the original proposer and any properly submitted competing proposals, utilizing the evaluation criteria set forth in the request for proposals.

(g) The department will rank all proposals after the evaluation described in subsection (f) of this section, and may select the private entity whose proposal provides the best value to the department. The department will negotiate a pass-through toll agreement with that proposer.

(h) If an agreement satisfactory to the department cannot be negotiated with the proposer, the department will formally end negotiations with that proposer. The department may reject all proposals or proceed to the next most highly ranked proposal and attempt to negotiate an agreement with that party.

§5.56.Final Approval.

The executive director will submit to the commission a summary of the final terms of a successfully negotiated pass-through toll agreement. The commission may authorize the executive director to execute the agreement if it finds that the agreement is in the best interest of the state and the project:

(1) is compatible with existing and planned transportation facilities; and

(2) furthers state, regional, and local transportation plans, programs, policies, and goals.

§5.57.Payment of Pass-Through Tolls.

(a) Amount to be reimbursed.

(1) General. Except as provided in paragraph (2) of this subsection, the department will reimburse the developer, through the annual payment of pass-through tolls, an amount equal to the department estimate.

(2) Exception.

(A) The commission may direct the department to provide for reimbursement in an amount less than the department estimate if:

(i) it determines that the project's estimated benefits to mobility do not warrant full reimbursement;

(ii) it determines that the construction of the project will result in a significant economic gain to the developer; or

(iii) the developer proposes to share in the cost of the project.

(B) The commission may direct the department to provide for reimbursement in an amount more than the department estimate if the commission determines that there will be a financial benefit to the state, through the avoidance of inflation, as a result of building the project sooner. The additional amount authorized by the commission may not be more than the amount of the financial benefit determined by the commission.

(C) The commission may establish the precise amount to be reimbursed or may establish parameters within which the executive director may negotiate.

(b) Payment schedule. The schedule of pass-through toll payments will be calculated based on the department's traffic projections for the highway and a contract period to be negotiated between the department and the developer. The payment schedule may include a maximum and a minimum annual amount to be paid. Payments will be made in accordance with subsection (c)(2) of this section.

(c) Allocation of risk.

(1) Construction and operation costs.

(A) Cost overruns. Unless otherwise specified in the agreement, the developer is responsible for cost overruns caused by any reason. The department may agree to share identified cost overruns if it deems such action to be in the state's interest. The department may agree to alter the payment schedule based upon cost overruns provided that the agreement establishes a maximum amount or rate by which the department will do so.

(B) Cost underruns. If actual costs are below the department estimate, the developer is not required to repay the department the difference between the actual costs and the amount designated in the agreement.

(2) Traffic volume.

(A) If traffic volume exceeds projections, the department will not be responsible for annual payments above the highest amount designated in the agreement. If traffic volume is less than projected, the department will pay at least the lowest amount designated in the agreement.

(B) If traffic volume exceeds projections, the department may agree to reduce the time period in which the developer is reimbursed the amount designated in the agreement. If traffic volume is less than projected, the term of the agreement will be extended until the developer is reimbursed the amount designated in the agreement.

§5.58.Project Development.

(a) Social and environmental impact.

(1) General. A developer that is responsible for the construction of a project shall conduct the environmental review and public involvement for the project in the manner prescribed by Chapter 2, Subchapter C of this title (relating to Environmental Review and Public Involvement for Transportation Projects). The department may choose to conduct the environmental review and public involvement.

(2) Commission approval. The commission must approve each environmental review under this section before construction of the project begins.

(b) Design and construction.

(1) Responsibility. The developer is fully responsible for the design, construction, and, operation, as applicable, of each project it undertakes. This responsibility includes ensuring that all EPIC are addressed in project design and carried out during project construction and operation.

(2) Design criteria.

(A) State criteria. All designs developed by or on behalf of the developer shall comply with the latest version of the department's manuals, including, but not limited to, the Roadway Design Manual, Pavement Design Manual, Hydraulic Design Manual, the Texas Manual on Uniform Traffic Control Devices, and Bridge Design Manual, and the Texas Accessibility Standards.

(B) Alternative criteria. A developer may request approval to use different accepted criteria for a particular item of work. Alternative criteria may include, but are not limited to, the latest version of the AASHTO Policy on Geometric Design of Highways and Streets, the AASHTO Pavement Design Guide, and the AASHTO Bridge Design Specifications. The use of alternative criteria is subject to the approval of the Federal Highway Administration for those projects involving federal funds. The executive director may approve the use of alternative criteria if the alternative criteria are determined to be sufficient to protect the safety of the traveling public and protect the integrity of the transportation system.

(C) Exceptions to design criteria. A developer may request approval to deviate from the state or alternative criteria for a particular design element on a case by case basis. The request for approval shall state the criteria for which an exception is being requested and must include a comprehensive description of the circumstances and engineering analysis supporting the request. The executive director may approve an exception after determining that the particular criteria could not reasonably be met due to physical, environmental, or other relevant factors and that the proposed design is a prudent engineering solution.

(3) Access.

(A) Access management. Access to the facility shall be in compliance with the department's access management policy.

(B) Interstate access. For proposed projects that will change the access control line to an interstate highway, the developer shall submit to the department all data necessary for the department to request Federal Highway Administration approval.

(4) Preliminary design submission and approval. When design is approximately 30% complete, the developer shall send the following preliminary design information to the department for review and approval in accordance with the procedures and timeline established in the project development agreement described in subsection (d) of this section:

(A) a completed Design Summary Report form as contained in the department's Project Development Process Manual;

(B) a design schematic depicting plan, profile, and superelevation information for each roadway;

(C) typical sections showing existing and proposed horizontal dimensions, cross slopes, location of profile grade line, pavement layer thickness and composition, earthen slopes, and right of way lines;

(D) bridge, retaining wall, and sound wall layouts;

(E) hydraulic studies and drainage area maps showing the drainage of waterways entering the project and local project drainage;

(F) an explanation of the anticipated handling of existing traffic during construction;

(G) when structures meeting the definition of a bridge as defined by the National Bridge Inspection Standards are proposed, an indication of structural capacity in terms of design loading;

(H) an explanation of how the U.S. Army Corps of Engineers permit requirements, including associated certification requirements of the Texas Commission on Environmental Quality, will be satisfied if the project involves discharges into waters of the United States; and

(I) the location and text of proposed mainlane guide signs shown on a schematic that includes lane lines or arrows indicating the number of lanes.

(5) Construction specifications.

(A) All plans, specifications, and estimates developed by or on behalf of the developer shall conform to the latest version of the department's Standard Specifications for Construction and Maintenance of Highways, Streets, and Bridges, and shall conform to department-required special specifications and special provisions.

(B) The executive director may approve the use of an alternative specification if the proposed alternative specification is determined to be sufficient to ensure the quality and durability of the finished product for the intended use and the safety of the traveling public.

(6) Submission and approval of final design plans and contract administration procedures. When final plans are complete, the developer shall send the following information to the executive director for review and approval in accordance with the procedures and timelines established in the project development agreement described in subsection (e) of this section:

(A) seven copies of the final set of plans, specifications, and engineer's estimate (PS&E) that have been signed and sealed by the responsible engineer;

(B) revisions to the preliminary design submission previously approved by the department in a format that is summarized or highlighted for the department;

(C) a proposal for awarding the construction contract in compliance with applicable state and federal requirements;

(D) contract administration procedures for the construction contract with criteria that comply with the applicable national or state administration criteria and manuals; and

(E) the location and description of all EPIC addressed in construction.

(7) Construction inspection and oversight.

(A) Unless the department agrees in writing to assume responsibility for some or all of the following items, the developer is responsible for:

(i) overseeing all construction operations, including the oversight and follow through with all EPIC;

(ii) assessing contract revisions for potential environmental impacts; and

(iii) obtaining any necessary EPIC required for contract revisions.

(B) The department may inspect the construction of the project at times and in a manner it deems necessary to ensure compliance with this section.

(8) Contract revisions. All revisions to the construction contract shall comply with the latest version of the applicable national or state administration criteria and manuals, and must be submitted to the department for its records. Any revision that affects prior environmental approvals or significantly revises project scope or the geometric design must be submitted to the executive director for approval prior to beginning the revised construction work. Procedures governing the executive director's approval, including time limits for department review, shall be included in the project agreement described in subsection (e) of this section.

(9) As-built plans. Within six months after final completion of the construction project, the developer shall file with the department a set of the as-built plans incorporating any contract revisions. These plans shall be signed, sealed, and dated by a professional engineer licensed in Texas certifying that the project was constructed in accordance with the plans and specifications.

(10) Document and information exchange. The developer agrees to deliver to the department all materials used in the development of the project including, but not limited to, aerial photography, computer files, surveying information, engineering reports, environmental documentation, general notes, specifications, and contract provision requirements.

(11) State and federal law. The developer shall comply with all federal and state laws and regulations applicable to the project and the state highway system, and shall provide or obtain all applicable permits, plans, and other documentation required by a federal or state entity.

(c) Contracts. All contracts for the development, construction, or operation of a project shall be awarded in compliance with applicable law.

(d) Federal law. If any federal funds are used in the development or construction of a project under this subchapter, or if the department intends to fund pass-through toll payments with federal funds, the development and construction of the project shall be accomplished in compliance with all applicable federal requirements.

(e) Project development agreement. The developer and the department shall enter into an agreement governing the development of a project under this subchapter. The agreement shall, at a minimum, include:

(1) the responsibilities of each party concerning the design and construction of the project;

(2) procedures governing the submittal of information required by this subchapter;

(3) timelines governing approvals of the executive director under this subchapter; and

(4) other terms or conditions mutually agreed upon by the parties.

§5.59.Operation.

(a) Agreement. A pass-through toll agreement may provide for a developer to operate a highway.

(b) Responsibility. To the extent provided in the agreement, a developer shall perform or cause to be performed all work required to operate the highway. This work includes all maintenance and repair required to ensure that the highway is kept in its designed and constructed or updated condition, and that the highway functions as intended.

(c) Maintenance.

(1) Department standards. In performing work under this section, the developer shall meet or exceed the most current "Texas Maintenance Assessment Program" minimum rating requirements for interstate highways as established by the commission in its implementation of Government Accounting Standards Boards Statement No. 34.

(2) Alternative standards. A developer may request approval to use alternative maintenance standards. The executive director may approve the use of alternative maintenance standards if the director determines that the alternative standards are sufficient to protect the safety of the traveling public and protect the integrity of the transportation system.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 30, 2004.

TRD-200400609

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: March 14, 2004

For further information, please call: (512) 463-8630


Chapter 9. CONTRACT MANAGEMENT

Subchapter F. CONTRACTS FOR SCIENTIFIC, REAL ESTATE APPRAISAL, RIGHT OF WAY ACQUISITION, AND LANDSCAPE ARCHITECTURAL SERVICES

43 TAC §9.87

The Texas Department of Transportation (department) proposes amendments to §9.87, concerning selection of contracts for scientific, real estate appraisal, right of way acquisition, and landscape architectural services.

EXPLANATION OF PROPOSED AMENDMENTS

Transportation Code, Chapter 223, Subchapter D, provides for the procurement of scientific services. Government Code, Chapter 2254, Subchapter A, authorizes the procurement of real estate appraisal, right of way acquisition, and landscape architectural services.

The amendments to §9.87 increase the maximum amount payable under an indefinite delivery contract from $1 million to $2 million for scientific, real estate appraisal, right of way acquisition, and landscape architectural services in a single district and to a maximum of $5 million if the services are to be provided in two or more districts.

This increase will allow the department to be more flexible. The current cap of $1 million is not always enough to complete a minor and a major project. The purpose of indefinite delivery contracts is to facilitate the implementation of more than one project. To start with a new firm in the middle of a large-scale project causes a loss of continuity. This is especially disruptive in excavation work. More projects are expected with the increase in toll roads and design-build projects in new locations. Because the scope of impact is so large with these projects, and the timelines are short, a $1 million contract does not allow sufficient contract capacity. The department still has the option to advertise contracts for smaller amounts.

FISCAL NOTE

James Bass, Director, Finance Division, has determined that for each of the first five years the amendments as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendments. There are no anticipated economic costs for persons required to comply with the amendments as proposed.

Richard Monroe, General Counsel, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.

PUBLIC BENEFIT

Mr. Monroe has also determined that for each of the first five years the section is in effect, the public benefit anticipated as a result of enforcing or administering the amendments will be an increase in the efficiency of completing projects. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments may be submitted to Richard Monroe, General Counsel, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on March 15, 2004.

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, Chapter 223, Subchapter D, which provides for the selection of technical experts, and Government Code, Chapter 2254, Subchapter A, which provides for the selection of real estate appraisers and landscape architects.

CROSS REFERENCE TO STATUTE: Transportation Code, Chapter 223, Subchapter D and Government Code, Chapter 2254, Subchapter A.

§9.87.Selection.

The department will perform three types of contract selections.

(1) - (2) (No change.)

(3) Indefinite delivery contract selection.

(A) (No change.)

(B) The typical type of work will be described in the contract [ notice ]. Specific services shall be authorized by individual work authorizations on an as-needed basis. The maximum contract amount shall be specified in the contract. The total contract amount shall not exceed $2,000,000 for a contract issued to provide services in a single district of the department. The total of the contract work authorizations shall not exceed $5,000,000 in a contract issued to provide services in two or more districts of the department. [ The maximum contract amount shall be specified and shall not exceed $1,000,000 per contract. The contract period shall be specified. ]

(C) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 30, 2004.

TRD-200400608

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: March 14, 2004

For further information, please call: (512) 463-8630


Chapter 25. TRAFFIC OPERATIONS

Subchapter C. CONGESTION MITIGATION FACILITIES

43 TAC §§25.40 - 25.47

The Texas Department of Transportation (department) proposes amendments to §§25.40 - 25.43 and new §§25.44 - 25.47, concerning congestion mitigation facilities.

EXPLANATION OF PROPOSED AMENDMENTS AND NEW SECTIONS

House Bill 1208, 78th Legislature, Regular Session, 2003, expands the authority of the department to enter into agreements with various transportation entities for the design, construction, operation, and maintenance of high-occupancy vehicle (HOV) lanes and toll lanes established for the purpose of congestion mitigation.

House Bill 1208 also allows the Texas Transportation Commission (commission) to authorize the use of HOV lanes by low-emission vehicles (LEV) and motorcycles regardless of the minimum number of occupants of these vehicles as long as this does not jeopardize the receipt or use of federal funds by the department.

The legislation also gives the commission the authority to designate one or more lanes of a portion of the state highway as an exclusive lane for one or more classes of vehicles. The commission must follow specific criteria contained in the statute before it may designate an exclusive lane. The commission may also establish tolls on an exclusive lane under certain conditions.

House Bill 1208 also notes that restrictions contained in Transportation Code, Chapter 224, Subchapter F do not apply to police or emergency vehicles, that the department is responsible for installation and maintenance of traffic control devices installed under that subchapter, and that motorists are responsible for obeying these traffic control devices.

SECTION BY SECTION ANALYSIS

Section 25.40 is amended to reflect the expanded authority of the department established by House Bill 1208 to enter into agreements with transportation entities for HOV and toll lanes.

Section 25.41 is amended to incorporate new definitions for "exclusive lanes," "HOV authority," "level of service C," "low-emission vehicle," "seriously degraded," "toll entity," and "toll lane." The term "authority" is deleted and replaced with "HOV authority" to distinguish it from the definition of "toll entity." The definition of "low-emission vehicle" is designed to ensure that only very clean single occupancy vehicles have access to the HOV lanes.

Section 25.42 is amended to reflect the department's authority to create toll lanes on any portion of the state highway system for congestion mitigation purposes and to create exclusive lanes.

Section 25.43 is amended to include toll lanes.

New §25.44 allows, but does not require, the department to authorize the use of HOV lanes by low-emission vehicles and motorcycles without meeting the minimum occupancy requirements of the facility. Before such authorization may occur, the department must find that the HOV lane or lanes will be able to adequately absorb the additional traffic volume without suffering adverse operational impacts. The new section also establishes the criteria the department will follow before suspending or rescinding the use of an HOV facility by these vehicles. The section notes that no such authorization may be given by the department if it would jeopardize the state's ability to receive or use federal transportation funds.

New §25.45 allows the commission to designate and the department to finance, design, construct, operate, or maintain exclusive lanes on a portion of the state highway system. In order to designate an exclusive lane, the commission must find that the designation will improve transportation safety, mobility, or air quality. In accordance with House Bill 1208, the department may charge a toll for the use of an exclusive lane if the lanes or multi-lane facility adjacent to the exclusive lane are also tolled or a vehicle authorized to use the tolled exclusive lane is authorized to use non-tolled adjacent lanes or an adjacent non-tolled multi-lane facility. The new section also allows the department to enter into a third-party agreement with various entities for the design, construction, operation, or maintenance of a toll exclusive lane.

New §25.46 states that the department is responsible for the installation and maintenance of all official traffic control devices installed under this subchapter. The section does allow the department to authorize an entity with which it contracts to operate a toll lane under this subchapter to install and maintain the necessary traffic control devices.

New §25.47 provides that police and emergency vehicles may use any lane of the state highway system regardless of the restrictions imposed by this subchapter.

FISCAL NOTE

James Bass, Director, Finance Division, has determined that for each of the first five years the amendments and new sections as proposed are in effect, there will be no fiscal implications for local government and there will be minimal fiscal implications for state government as a result of enforcing or administering the amendments and new sections. Positive fiscal impact may be experienced as a result of possible expanded use of tolls on the state highway system for congestion mitigation purposes; however, exact fiscal impact cannot be determined. The proposed changes will be accomplished using existing department staff and additional costs for roadway signing should not be significant. There should be no other fiscal impacts associated with the amendments and new sections. There could be an economic cost for persons choosing to utilize the toll lanes. That cost cannot be estimated because the toll charges will be set according to the needs of each particular project.

Carlos A. Lopez, P.E., Director, Traffic Operations Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments and new sections.

PUBLIC BENEFIT

Mr. Lopez has also determined that for each of the first five years the amendments and new sections are in effect, the public benefit anticipated as a result of enforcing or administering the amendments and new sections will be to provide a safer, more efficient driving environment for the traveling public. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments and new sections may be submitted to Carlos A. Lopez, P.E., Director, Traffic Operations Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on March 15, 2004.

STATUTORY AUTHORITY: The amendments and new sections are proposed under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and specifically Transportation Code, 224.151(8) which authorizes the commission to define a low-emissions vehicle, and Transportation Code, §224.159 which authorizes the commission to adopt rules for Transportation Code, Chapter 224, Subchapter F.

CROSS REFERENCE TO STATUTE: Transportation Code, Chapter 224, Subchapter F.

§25.40.Purpose.

Transportation Code, Subchapter F, Chapter 224, authorizes the Texas Department of Transportation (the department) to finance, design, construct, operate, or maintain one or more lanes on a state highway facility as high occupancy vehicle (HOV) or exclusive lanes and to charge a toll for these lanes. The department may also enter into agreements with various transportation entities for the design, construction, operation, and maintenance of HOV and toll lanes. [ Transportation Code, §224.153 and §224.154, authorize the commission to designate, and the department or a transportation corporation to design, construct, operate, or maintain, high occupancy vehicle (HOV) lanes on the state highway system, and to charge a toll for the use of one or more lanes of a state highway facility, including an HOV lane, for the purpose of congestion mitigation. ] In order to support the construction of infrastructure and traffic operation strategies designed to decrease traffic congestion, improve air quality, improve safety, and enhance the use of existing highways, this subchapter prescribes requirements for the designation, funding, and operation of HOV lanes , toll lanes, and exclusive lanes [ and high occupancy toll (HOT) lanes ] on the state highway system.

§25.41.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

[(1) Authority--A regional tollway authority created under Transportation Code, Chapter 366, a metropolitan rapid transit authority created under Transportation Code, Chapter 451, a regional transportation authority created under Transportation Code, Chapter 452, or a municipal transit department created under Transportation Code, Chapter 453.]

(1) [ (2) ] Commission--The Texas Transportation Commission.

(2) [ (3) ] Department--The Texas Department of Transportation.

(3) Exclusive lane--A lane of a highway or segment of a highway on the state highway system the use of which is restricted to one or more specific classifications of motor vehicle.

(4) - (7) (No change.)

(8) HOV Authority--A transit authority created under Transportation Code, Chapter 451, 452, or 453; a regional mobility authority created under Transportation Code, Chapter 361 or 370; a municipality; or a transportation corporation.

(9) Level of Service C--A measure of highway congestion as defined by the latest edition of the Highway Capacity Manual published by the United States Transportation Research Board.

(10) Low-emission vehicle--A vehicle that has been certified by regulations of the federal Environmental Protection Agency to meet the Tier II Bin 1 or Bin 2 emission level established for that make and model year.

(11) Seriously degraded--When a lane or lanes fail to achieve at least a level of Service C for 90% of the time over a consecutive 90-day period during weekday peak travel periods.

(12) Toll entity--A regional tollway authority created under Transportation Code, Chapter 366; a transit authority created under Transportation Code, Chapter 451, 452, or 453; a regional mobility authority created under Transportation Code, Chapter 361 or 370; a county acting under Transportation Code, Chapter 284; or a transportation corporation.

(13) Toll lane--A lane or lanes of the state highway system, including an HOV lane, on which a toll has been authorized by order of the commission under Transportation Code, Chapter 224, Subchapter F.

(14) [ (8) ] Transportation corporation--A corporation created by the commission under §§15.80 - 15.93 of this title (relating to Transportation Corporations).

§25.42.Development of HOV , Exclusive, and Toll Lanes [ and HOT Lanes ].

(a) Criteria. The department may expend funds to perform studies and analyses of project alternatives that include the development of an HOV (including a HOT lane), toll, or exclusive [ or HOT ] lane on the state highway system for the purposes of congestion mitigation as described under this subchapter . In performing studies and project planning, the department will consider whether a potential HOV , toll, or exclusive [ or HOT ] lane will:

(1) - (4) (No change.)

(5) provide connectivity to or enhance the effectiveness of existing HOV , toll, or exclusive [ or HOT ] lanes;

(6) - (8) (No change.)

(b) Project development. After completion of all necessary studies and project planning, the department will submit a proposal to the commission requesting the designation of one or more lanes on a state highway facility as dedicated HOV , toll, or exclusive [ or HOT ] lanes, and requesting approval to design and construct an HOV , toll, or exclusive [ or HOT ] lane project. In determining whether to make a designation and grant approval, the commission will consider the criteria prescribed in subsection (a) of this section. As part of the designation and approval process, the commission will consider the studies and planning documents prepared by the department under subsection (a) of this section.

§25.43.Operation of HOV and Toll [ HOT ] Lanes.

(a) Eligibility requirements. The executive director, in cooperation with an HOV authority with which the department contracts under this subchapter [ subsection (d) of this section ], will establish eligibility requirements for vehicles authorized to use HOV [ or HOT ] lanes on the state highway system, including eligible vehicle classes and occupancy requirements. These requirements may be established based on the type and location of the transportation facility and on the time of day. In establishing these requirements, the executive director will consider:

(1) the level of service on the HOV [ or HOT ] lanes;

(2) the level of service on general purpose lanes that are part of the highway facility on which HOV [ or HOT ] lanes are located or are proposed to be located;

(3) - (6) (No change.)

(b) Toll charges.

(1) The commission by minute order will establish charges for the use of toll lanes or will authorize an HOV authority or toll entity with which the department contracts to set the amount of toll charges [ HOT lanes ]. Variable toll charges may be established based on severity of congestion, time of day, classification of vehicle, type and location of facility, and vehicle occupancy. In establishing toll charges, the commission will consider the results of traffic and revenue studies and operational plans[ , ] prepared by the department or an HOV authority or toll entity [ an authority ] with which the department contracts under this subchapter [ under subsection (d) of this section ], and the criteria prescribed in subsection (a) of this section.

(2) A governmental entity that contributes substantial funding for a toll [ HOT ] lane project may recommend a toll charge to be set by commission minute order . The commission will approve the recommended toll charge if the commission determines that the charge:

(A) - (B) (No change.)

(c) Administrative fee. The commission by minute order , or an HOV authority or toll entity with which the department contracts by order of its governing body, will establish an administrative fee charged to owners of vehicles that use toll lanes established under this subchapter [ HOT lanes ] without paying the proper toll. In establishing an administrative fee, the commission will consider:

(1) the estimated cost to the department to collect unpaid tolls on tolled [ HOT ] lanes on the state highway system; and

(2) the existing or estimated violation rate on tolled [ HOT ] lanes on the state highway system.

(d) Operating agreements. The department may enter into an agreement with an HOV authority or toll entity to operate one or more HOV or toll [ HOT ] lanes. The agreement will contain terms necessary for the safe and efficient operation of the HOV or toll [ HOT ] lane, including, but not limited to:

(1) - (3) (No change.)

(4) responsibilities for setting toll charges and administrative fees;

(5) [ (4) ] indemnification of the department; and

(6) [ (5) ] distribution of revenue between the department and the HOV authority or toll entity .

§25.44.Use of HOV Lanes by Motorcycles and Low-Emissions Vehicles.

(a) The department may allow motorcycles and low-emissions vehicles to use HOV lanes without meeting the minimum occupancy requirements of the facility.

(b) In determining whether to allow these vehicles to use an HOV lane or lanes without meeting the minimum occupancy requirements, the department will consider the ability of the HOV lane or lanes to absorb the additional traffic volume without suffering adverse operational impacts.

(c) The department may suspend or rescind this authorization if:

(1) the department believes that the operation of the HOV lane or lanes has become, or is in danger of becoming, seriously degraded; or

(2) the use of an HOV facility by these vehicles without meeting the minimum occupancy requirement would jeopardize or impair the state's ability to receive or use federal funds.

§25.45.Exclusive Lanes.

(a) The commission by minute order may designate, and the department may finance, design, construct, operate, or maintain an exclusive lane or lanes on a portion of the state highway system.

(b) In designating an exclusive lane, the commission must find that such a designation will improve transportation safety, mobility, or air quality.

(c) Before designating an exclusive lane, there must be:

(1) two or more lanes adjacent to the proposed exclusive lane for the use of other vehicles; or

(2) a multi-lane facility adjacent to the proposed exclusive lane for the use of other vehicles.

(d) The department may charge a toll for the use of an exclusive lane if the toll is expected to enhance safety or mobility, improve congestion or air quality, and:

(1) the lanes or multi-lane facility adjacent to the exclusive lane are also tolled; or

(2) a vehicle authorized to use the tolled exclusive lane is authorized to use non-tolled adjacent lanes or an adjacent non-tolled multi-lane facility.

(e) Lanes that are adjacent to an exclusive lane may be designated as exclusive lanes themselves for differing classes of motor vehicles.

(f) The department may enter into an agreement with a regional mobility authority created under Transportation Code, Chapter 361 or 370, a county acting under Transportation Code, Chapter 282, or a transportation corporation to design, construct, operate, or maintain a toll exclusive lane created under this section.

§25.46.Traffic Control Devices.

(a) The department is responsible for the installation and maintenance of all official traffic control devices necessary to implement and ensure compliance with lane restrictions designated under this subchapter.

(b) If the department enters into a contract with an entity to operate a toll lane under this subchapter, the department may authorize the contracted entity to erect and maintain the necessary traffic control devices.

(c) All traffic control devices installed under this subchapter must be in compliance with the Texas Manual on Uniform Traffic Control Devices.

(d) Motorists are required to obey traffic control devices installed under this subchapter as required under Transportation Code, §544.004.

§25.47.Police and Emergency Vehicles.

A police or emergency vehicle as defined by Transportation Code, §541.201, may use any lane of the state highway system regardless of restrictions imposed under this subchapter.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 30, 2004.

TRD-200400606

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: March 14, 2004

For further information, please call: (512) 463-8630