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
[
§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
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
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
[
(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
Subchapter C. CONGESTION MITIGATION FACILITIES
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
].
Chapter 5.
FINANCE
Chapter 9.
CONTRACT MANAGEMENT
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.
]
Chapter 25.
TRAFFIC OPERATIONS