TITLE 43.TRANSPORTATION

Part 1. TEXAS DEPARTMENT OF TRANSPORTATION

Chapter 1. MANAGEMENT

Subchapter F. ADVISORY COMMITTEES

43 TAC §§1.82, 1.84, 1.85

The Texas Department of Transportation (department) proposes amendments to §§1.82, 1.84, and 1.85, concerning advisory committees.

EXPLANATION OF PROPOSED AMENDMENTS

House Bill 3588, 78th Legislature, Regular Session, 2003, made significant changes in the composition and duties of the department's Public Transportation Advisory Committee and Port Authority Advisory Committee. It is therefore necessary to amend the department's rules to reflect these statutory changes. In addition, under Government Code, §2110.008, the department must establish expiration dates for all advisory committees. The rules must be amended to extend the duration of the advisory committees from December 31, 2003, when all but one are currently scheduled to expire, to December 31, 2005.

Section 1.82(d) is amended to remove the reference to reimbursement of expenses for some advisory committees. The 78th Legislature did not appropriate funds for the reimbursement of travel expenses for some of the department's advisory committees.

Section 1.82(i) is amended to reauthorize the department's statutory advisory committees for another two years. In each case, the department has determined that the committee serves a useful continuing function by providing a conduit for the exchange of information with the affected industry. Each committee is continued in existence until December 31, 2005. This date will permit the commission to conduct another comprehensive review of its advisory committees after the 2005 legislative session. The Border Trade Advisory Committee is already specifically scheduled to expire on December 31, 2005, and is therefore unaffected by this change.

Section 1.84(b)(2) is amended to provide that members of the Public Transportation Advisory Committee will serve staggered three-year terms. This is consistent with the terms served by members of other advisory committees and will help to ensure continuity in service.

Section 1.84(b)(3)(C) provides that the Public Transportation Advisory Committee will advise the commission with regard to the implementation of Transportation Code, Chapter 461. This additional duty was added by House Bill 3588.

Section 1.84 (b)(4) is amended to reflect changes made by House Bill 3588 to the manner in which Public Transportation Advisory Committee meetings are called. The authority to call a meeting is also delegated to the designated office responsible for the committee for ease of administration.

Section 1.84(c)(1) is amended to reflect that under House Bill 3588, the Port Authority Advisory Committee is now established by a different statute.

Section 1.84(c)(2) is amended to reflect that the committee will now be composed of seven members and that the designation of the chair and vice chair can be made under the rules applicable generally to statutory advisory committees.

Section 1.84(c)(3) is amended to set out the duties of the committee, as identified in House Bill 3588.

Section 1.84(c)(4) is amended to require semiannual meetings to conform to the statute.

Section 1.84(c)(5) is deleted because there is no need for a specific reference to the formation of subcommittees, which will now be governed by the same general procedures as for other advisory committees.

Section 1.84(d)(6) is deleted. Because the Border Trade Advisory Committee will now have the same sunset date as other statutory advisory committees, a specific reference in this subsection is no longer necessary.

Section 1.85(c) is amended to reauthorize the department's nonstatutory advisory committees for another two years. In each case, the department has determined that the committee serves a useful continuing function by providing a conduit for the exchange of information with the affected industry. Each committee is continued in existence until December 31, 2005. This date will permit the commission to conduct another comprehensive review of its advisory committees after the 2005 legislative session.

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 sections as proposed.

Richard D. 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

Richard D. Monroe 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 will be increased public understanding of and improved functioning of the department's advisory committees. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments may be submitted to Richard D. Monroe, General Counsel, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on August 11, 2003.

STATUTORY AUTHORITY

The amendments 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. In addition, the amendments are adopted under Government Code, Chapter 2110, which provides that a state agency that is advised by an advisory committee shall adopt rules that state the purpose of the committee, describe the task of the committee, state the manner in which the committee will report to the agency, and establish a date on which the committee is abolished unless the governing body of the agency affirmatively votes to continue the committee in existence. The amendments are also adopted under Transportation Code, §21.003, which authorizes the adoption of rules with respect to the Aviation Advisory Committee; Transportation Code, §55.009, which authorizes the adoption of rules to implement the department's authority under Chapter 55, which includes the establishment and conduct of the Port Authority Advisory Committee; Transportation Code, §201.114, which authorizes the adoption of rules with respect to the Border Trade Advisory Committee; and Transportation Code, §455.004, which authorizes the adoption of rules with respect to the Public Transportation Advisory Committee.

No statutes, articles, or codes are affected by the proposed amendments.

CROSS-REFERENCE TO STATUTES

Government Code, Chapter 2110 and Transportation Code, §21.003, §55.009, §201.114, and §455.004.

§1.82.Statutory Advisory Committee Operations and Procedures.

(a)-(c) (No change.)

(d) Reimbursement. Advisory committee members are not entitled to receive compensation for serving as members. [ Members of the Public Transportation, Aviation, and Port Authority Advisory Committees will be reimbursed for reasonable and necessary expenses for performing their duties if funding has been appropriated by the legislature. Current rules and laws governing reimbursement of expenses for state employees shall govern reimbursement for expenses of advisory committee members. ]

(e)-(h) (No change.)

(i) Duration. Except as otherwise specified in this subchapter, each statutory advisory committee is abolished December 31, 2005 [ 2003 ], unless the commission amends its rules to provide for a different date.

§1.84.Statutory Advisory Committees.

(a) (No change.)

(b) Public Transportation Advisory Committee.

(1) Purpose. Created pursuant to Transportation Code, §455.004, the Public Transportation Advisory Committee provides a forum for the exchange of information between the department, the commission, and committee members representing the transit industry and the general public. Advice and recommendations expressed by the committee provide the department and the commission with a broader perspective regarding public transportation matters that will be considered in formulating department policies.

(2) Membership. Members of the Public Transportation Advisory Committee shall be appointed and shall serve pursuant to Transportation Code, §455.004. Members will be appointed for staggered three-year terms unless removed sooner at the discretion of the commission.

(3) Duties. The committee shall:

(A) advise the commission on the needs and problems of the state's public transportation providers, including recommending methods for allocating state public transportation funds if the allocation methodology is not specified by statute;

(B) comment on proposed rules or rule changes involving public transportation matters during their development and prior to final adoption unless an emergency requires immediate action by the commission; [ and ]

(C) advise the commission on the implementation of Transportation Code, Chapter 461; and

(D) [ (C) ] perform other duties as determined by order of the commission.

(4) Meetings. The committee shall meet as requested by the commission or the office designated under §1.82(f) of this subchapter. [ : ]

[ (A) at least quarterly, at the call of its chair, but not exceeding once each month;]

[ (B) at the request of the commission; and]

[ (C) as required by §1.83 of this subchapter.]

(5) Public transportation technical committees.

(A) The Public Transportation Advisory Committee may appoint one or more technical committees to advise it on specific issues, such as vehicle specifications, funding allocation methodologies, training and technical assistance programs, and level of service planning.

(B) A technical committee shall report any findings and recommendations to the Public Transportation Advisory Committee.

(c) Port Authority Advisory Committee.

(1) Purpose. Created pursuant to Transportation Code, §55.006 [ §53.001 ], the purpose of the Port Authority Advisory Committee is to provide a forum for the exchange of information between the commission, the department, and committee members representing the port industry in Texas and others who have an interest in ports. The committee's advice and recommendations will provide the commission and the department with a broad perspective regarding ports and transportation-related matters to be considered in formulating department policies concerning the Texas port system.

(2) Membership.

(A) The commission will appoint seven [ five ] members to staggered three-year terms unless removed sooner at the discretion of the commission.

(B) The commission will appoint:

(i) one member from the Port of Houston Authority of Harris County;

(ii) three [ two ] members from ports located on the upper Texas coast [ north of the Matagorda/Calhoun County line and excluding the Port of Houston Authority ]; and

(iii) three members [ two ] from ports located on the lower Texas coast [ south of the Matagorda/Calhoun County line ].

[ (C) The commission will consider nominees for the five members from:]

[ (i) Texas Ports Association;]

[ (ii) other port associations;]

[ (iii) Texas ports; and]

[ (iv) the general public.]

[ (D) Officers. The Port Authority Advisory Committee shall elect a chair and a vice-chair for two-year terms. The department encourages the committee to rotate the chair among the members from the different geographic areas represented.]

(3) Duties. The committee shall:

(A) prepare a port mission plan;

(B) review each project eligible to be funded under Transportation Code, Chapter 55, and make recommendations for approval or disapproval to the department;

(C) maintain trade data information that will assist ports in this state and international trade;

(D) annually prepare a list of projects that have been recommended by the committee, including:

(i) the recommended funding level for each project; and

(ii) if staged implementation of the project is appropriate, the funding requirements for each stage; and

(E) advise the commission and the department on matters relating to port authorities.

[ (A) advise the commission and the department on matters relating to port authorities, including:]

[ (i) intermodal and multimodal transportation issues relating to Texas waterways, ports, and port improvements, including other issues affecting port access and infrastructure needs; and]

[ (ii) the identification, development, and implementation of potential funding mechanisms, including the state infrastructure bank, for addressing the issues described by clause (i) of this subparagraph; and]

[ (B) perform other duties as determined by the commission, the executive director, or the executive director's designee.]

(4) Meeting. The committee shall meet at least semiannually [ once a calendar year ] and such other times as requested by the commission, the executive director, or the executive director's designee. The chair may request the department to call a meeting.

[ (5) Subcommittees.]

[ (A) The Port Authority Advisory Committee may appoint one or more subcommittees to provide advice on specific issues.]

[ (B) A subcommittee shall report any findings and recommendations to the Port Authority Advisory Committee chair.]

(d) Border Trade Advisory Committee.

(1)-(5) (No change.)

[ (6) Duration. The Border Trade Advisory Committee is abolished December 31, 2005, unless the commission amends its rules to provide for a different date.]

§1.85.Department Advisory Committees.

(a)-(b) (No change.)

(c) Duration. Except as otherwise specified in this subsection, a committee created under this section is abolished December 31, 2005 [ 2003 ], unless the commission amends its rules to provide for a different date.

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 June 30, 2003.

TRD-200303975

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 10, 2003

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

Chapter 9. CONTRACT MANAGEMENT

The Texas Department of Transportation (department) proposes amendments to §9.2, concerning contract claim procedure and the repeal of §9.120, concerning contract claims under Transportation Code, Chapter 361.

EXPLANATION OF PROPOSED AMENDMENTS AND REPEAL

The amendments to §9.2 are proposed as a result of recent legislation that amended Transportation Code, §201.112, Contract Claims. The legislation amended §201.112 by adding the following two classes of contract claims that are subject to department procedures for informal resolution and a specified appeal process: contracts under Transportation Code, Chapter 361, concerning the Texas Turnpike Authority; and contracts under Transportation Code, §391.091, concerning the contracts for the erection and maintenance of specific information logo signs along highways.

Prior to the recent legislation, contract claims under Chapter 361 and §391.091 were governed by Government Code, Chapter 2260, which generally governs contract claims against a unit of state government. Government Code, Chapter 2260 does not, however, apply to contract claims under Transportation Code, §201.112. The contract claim provisions of §201.112 govern most contracts that the department enters, including those under Transportation Code, Chapter 223, concerning bids and contracts for highway projects, and §22.018, concerning the department serving as the designated agent for local governments in contracting and supervising the construction of an airport or air navigation facility, and Government Code, Chapter 2254, concerning contracting for professional and consulting services.

House Bill 2905 added to Transportation Code, §201.112, contracts related to the logo sign program that the department implements in accordance with Transportation Code, Chapter 391. The logo sign program allows the department to contract for the erection and maintenance of specific information signs along highways.

House Bills 3184 and 3588 both added Texas Turnpike Authority contracts authorized by Transportation Code, Chapter 361 as contract claims governed by Transportation Code, §201.112. This change follows revisions to the Transportation Code during the 75th Legislature, 1997, that eliminated the Texas Turnpike Authority as a separate agency.

The department proposes amendments to §9.2, Contract Claim Procedure, and the repeal of §9.120 to reflect these changes and implement the new legislation in a manner that is consistent with other contract claims under Transportation Code, §201.112.

The proposed amendments are to the department's definition of "contract claim" and "contractor" found at §9.2(a)(3)and §9.2(a)(4). The definition of "contract claim" is amended to include Texas Turnpike Authority contracts that are entered under the authority of Transportation Code, Chapter 361 and contracts entered into as a part of the logo sign program under the authority of Transportation Code, §391.091. The definition of "contractor" is revised to include persons who are parties to a written contract entered into and administered by the department pursuant to Transportation Code, Chapter 361 or §391.091.

The department proposes the repeal of §9.120, concerning contract claims under Transportation Code, Chapter 361. This section currently provides for Chapter 361 contract claims to be addressed in a manner consistent with Government Code, Chapter 2260. Since the recent legislative changes make contract claims under Chapter 361 subject to Transportation Code, §201.112 instead of Government Code, Chapter 2260, the department's procedure set forth in §9.120 needs to be harmonized. The department proposes to accomplish this by repealing §9.120 and amending §9.2 to include Chapter 361 contract claims.

FISCAL NOTE

James Bass, Director, Finance Division, has determined that for each of the first five years the amendments and repeal 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 and repeal. There are no anticipated economic costs for persons required to comply with the sections as proposed.

Phillip E. Russell, P.E., Director, Texas Turnpike Authority 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 or repeal.

PUBLIC BENEFIT

Phillip E. Russell, P.E., has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the amendments and repeal will be conserving state and contractor resources as a consequence of having a uniform system to address contract claims. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments and repeal may be submitted to Phillip E. Russell, P.E., Director, Texas Turnpike Authority Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on August 11, 2003.

Subchapter A. GENERAL

43 TAC §9.2

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, §201.112, which provides for the department to establish rules for the informal resolution of a claim arising out of certain contracts.

No statutes, articles, or codes are affected by the proposed amendments.

CROSS REFERENCE TO STATUTE:

Transportation Code, §201.112

§9.2.Contract Claim Procedure.

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

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

(3) Contract claim--A claim for additional compensation, time extension, or any other reason, arising out of a contract between the State of Texas, acting in its own capacity or as an agent of a local government, and a contractor, which is entered into and administered by the Texas Department of Transportation pursuant to Transportation Code, Section 22.018, Section 391.091, Chapter 223, Chapter 361, or Government Code, Chapter 2254, Subchapters A and B.

(4) Contractor--An individual, partnership, corporation, or other business entity that is a party to a written contract with the State of Texas which is entered into and administered by the Texas Department of Transportation pursuant to Transportation Code, Section 22.018, Section 391.091, Chapter 223, Chapter 361, or Government Code, Chapter 2254, Subchapters A and B.

(5)-(9) (No change.)

(b) (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 June 30, 2003.

TRD-200303976

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 10, 2003

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

Subchapter H. CONTRACT CLAIMS ARISING FROM TOLL ROAD PROJECTS

43 TAC §9.120

(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, §201.112, which provides for the department to establish rules for the informal resolution of a claim arising out of certain contracts.

No statutes, articles, or codes are affected by the proposed repeal.

CROSS REFERENCE TO STATUTE:

Transportation Code, §201.112

§9.120.Contract Claims Under Transportation Code, Chapter 361.

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 June 30, 2003.

TRD-200303977

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 10, 2003

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

Chapter 11. DESIGN

The Texas Department of Transportation (department) proposes the repeal of §§11.50-11.53 concerning access driveways to state highways and simultaneously proposes new §§11.50-11.55 concerning access connections to state highways.

EXPLANATION OF PROPOSED REPEALS AND NEW SECTIONS

Transportation Code, Chapter 203, provides that the Texas Transportation Commission (commission) may lay out, construct, maintain, and operate a modern state highway system. Access management is one method of preserving the substantial investment in the ground transportation system by preserving the roadway level of service.

Due to the significant cost associated with the construction and maintenance of highways, it is imperative that highways provide maximum traffic handling capacity and reasonable access for as long as practical. Adjacent development and uncontrolled access points along highways can contribute to congestion and early deterioration of the operation of the highway, thereby reducing the ability of the state highway system to safely and efficiently move higher volumes of traffic.

Access management is an engineering and planning method of balancing the needs of mobility and safety on a highway system with the needs of access to adjacent land uses. Access management can significantly enhance traffic safety by reducing traffic accidents, personal injury, and property damage. It has been noted that access management promotes a more coordinated intergovernmental, long term approach to land use and transportation decisions in the context of quality of life, economic development, livable communities, and public safety.

Given the benefits to the ground transportation system and public safety, this subchapter promotes the use of access management on highways under the jurisdiction of the department.

Existing §§11.50-11.53 provide the current regulations for access driveways to state highways. Section 11.50 includes definitions for public, commercial, and private access driveways. Section 11.51 outlines the safety and operational basis for determining access driveways locations and the purpose they serve. Section 11.52 outlines the responsibilities for construction and maintenance of access driveways. Section 11.53 describes the conditions under which these rules apply. These sections are proposed for repeal and are to be replaced by the proposed new language in §§11.50-11.55.

New §11.50 describes the purpose and need for access management. This section also describes the application of this subchapter, the effective date, and provides for a transition period.

New §11.51 defines terms used in this subchapter.

New §11.52 describes the potential delegation of access location permit authority to local public agencies. The intent is to allow local public agencies that have formally adopted access management plans approved by the department, to have the authority to decide the location of access connections to highways that are within the jurisdiction of the local public agency. Subsection (a) does not apply to highways or highway segments where the department controls the access. This section also describes the general engineering requirements for locally permitted access connections.

New §11.53 describes the process for making access purchase requests where the department controls the access. The commission will make the final determination regarding the request to purchase access.

When the commission approves the sale of access, the sale will be accomplished under Transportation Code, Chapter 202, Subchapter B. Access points approved by the commission under subsection (c) of §11.53 will be specifically described by a metes and bounds property description.

New §11.54 describes the construction and maintenance requirements for approved access connection facilities. Since a commercial or private access driveway benefits primarily the property owner, the permittee is responsible for all costs associated with the construction and maintenance of the driveway. Since public access driveways benefit both the permittee and the traveling public, the department will maintain these facilities within the state highway right of way if these facilities connect to highways that are the maintenance responsibility of the department and provided that the permittee pays for the cost of materials and installation of the driveway.

Since access driveways are sometimes destroyed or removed as part of highway construction, §11.54 provides that the department will reestablish reasonable access.

To ensure the safety of the traveling public, this section also provides that the department may undertake actions deemed necessary to correct drainage or safety problems relating to existing or new access connection facilities.

To ensure that the department considers all reasonable alternatives during project development, new §11.55 provides that the department may construct local access roads when necessary to restore circulation, to resolve a landlock condition on a remaining parcel of land, or when it will otherwise benefit the state highway system. The section provides that commission approval must be obtained prior to the department entering into any agreements to provide local access roads in conjunction with a department project.

FISCAL NOTE

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

Ken Bohuslav, P.E., Director, Design Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the repeals and new sections.

PUBLIC BENEFIT

Mr. Bohuslav has also determined that for each year of the first five years the repeals and new sections are in effect, the public benefits anticipated as a result of enforcing or administering the repeals and new sections will be that interested parties will find the information related to access connections to state highways is conveniently located in Chapter 11. Due to the fact that improved safety and mobility on state highways will improve traffic circulation in adjacent areas, there will be no adverse effect on small businesses.

PUBLIC HEARING

Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, the Texas Department of Transportation will conduct three public hearings to receive comments concerning the proposed repeals and new sections. Each public hearing will begin at 6:00 p.m. on the following dates and at the following locations:

July 23, 2003: Irving City Hall; Council Chambers; 825 West Irving Blvd.; Irving, Texas 75060.

July 28, 2003: Bass Lecture Hall; 24th and Red River Streets; Austin, Texas 78713.

July 29, 2003: Houston-Galveston Area Council, Meeting Room A, 3555 Timmons Lane; Houston, Texas 77027.

These public hearings will be conducted in accordance with the procedures specified in 43 TAC §1.5. Those desiring to make official comments or presentations may register starting at 5:00 p.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 rules may be submitted to Ken Bohuslav, P.E., Director, Design Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on August 11, 2003.

Subchapter C. ACCESS DRIVEWAYS TO STATE HIGHWAYS

43 TAC §§11.50 - 11.53

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections 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 repeals 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.

No statutes, articles, or codes are affected by the proposed repeals.

CROSS REFERENCE TO STATUTE

Transportation Code, §201.101

§11.50.Definitions.

§11.51.Access Driveway Facilities.

§11.52.Access Driveway Facilities Outside the Corporate Limits of Municipalities.

§11.53.Applicability.

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 June 30, 2003.

TRD-200303978

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 10, 2003

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

Subchapter C. ACCESS CONNECTIONS TO STATE HIGHWAYS

43 TAC §§11.50 - 11.55

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.

No statutes, articles, or codes are affected by the proposed new sections.

CROSS REFERENCE TO STATUTE

Transportation Code, §201.101

§11.50.Access Management.

(a) Purpose and need. Access management is an engineering and planning method of balancing the needs of mobility and safety on a highway system with the needs of access to adjacent land uses. Access management is one method of preserving the substantial public investment in the ground transportation system by preserving the roadway level of service. Further, access management can significantly enhance traffic safety by reducing traffic accidents, personal injury, and property damage. It has been noted that access management practices can promote a more coordinated intergovernmental, long term approach to land use and transportation decisions in the context of quality of life, economic development, livable communities, and public safety. Given the benefits to the ground transportation system and public safety, it is the intention of the department to promote the use of access management on highways under the jurisdiction of the department.

(b) Applicability. This subchapter applies to all new access connections constructed on highways under the jurisdiction of the department. It also applies to existing access connections that may be reconstructed or otherwise modified as part of a department project.

(c) Effective date. The provisions of this subchapter are effective January 1, 2004.

(d) Transition period. Prior to January 1, 2005, exceptions to the provisions of this subchapter may be granted for specific access connection requests where significant prior commitments have been made under previous department policy.

§11.51.Definitions.

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

(1) Access connection--Facility for entry and/or exit such as a driveway, street, road, or highway that connects to the highways under the jurisdiction of the department.

(2) Commercial driveway--An entrance to, or exit from, any commercial, business, or similar type establishment.

(3) Commission--The Texas Transportation Commission.

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

(5) Engineering study--An appropriate level of analysis as determined by the department, which may include a traffic impact analysis, that determines the expected impact that permitting access will have on mobility, safety, and the efficient operation of the highways under the jurisdiction of the department.

(6) Local access management plans or guidelines--Plans or guidelines related to the application of access management adopted by a local government that are based on sound engineering and accepted access management principles and provide for reasonable access while ensuring the mobility and safety of roadways within its jurisdiction.

(7) Local access road--A local public street or road, generally one parallel to a highway under the jurisdiction of the department to which access for businesses or properties located between the highway and the local access road is provided as a substitute for access to the highway. A local access road may also be called a lateral road or reverse frontage road, depending on individual location and application.

(8) Permittee--A property owner or its authorized representative who receives an access connection permit from the department to construct or modify an access connection from the property to a highway under the jurisdiction of the department.

(9) Private driveway--An entrance to, or exit from, a residential dwelling, farm, or ranch for the exclusive use and benefit of the permittee.

(10) Public driveway--An approach from a county or city maintained road or street or an entrance or exit from a public school, a publicly owned cemetery, or other publicly owned places or buildings that provide for public access.

(11) Traffic impact analysis (TIA)--A traffic engineering study to the level of analysis determined by the department that determines the potential current and future traffic impacts of a proposed traffic generator and is signed, sealed, and dated by an engineer licensed to practice in the State of Texas.

§11.52.Delegation of Access Location Permit Authority to Local Public Agencies.

(a) Intent. The intention of the department is to allow local public agencies that have formally adopted access management plans or guidelines approved by the department to decide the location of access connections to highways that are within the jurisdiction of the local public agency. The local public agency's access management plans or guidelines must be based on sound engineering and accepted access management principles. This subsection does not apply to highways or highway segments where the adjacent property owner has no right of access.

(b) Engineering. Granting access location permit authority to local public agencies does not preclude the need to properly engineer access locations. Any impacts to drainage or hydraulics on highways under the jurisdiction of the department resulting from access connections must be approved by the department prior to any local access approval. Consideration must also be given to the actual driveway geometrics, utility location or relocation, compliance with the Americans with Disabilities Act (ADA) and Texas Accessibility Standards (TAS), environmental requirements, wetland considerations if appropriate, and all applicable state and federal laws, rules, and regulations.

§11.53.Locations Where the Department Controls the Access.

(a) Access purchase requests. Where new access connections are requested on highways where the adjacent owner has no existing right of access, requests to purchase access will be considered under the provisions of this section. The request must include an engineering study acceptable to the department.

(b) Approval. The commission will make the final determination concerning new access connections under this section. The commission may consider the findings of the engineering study and the mobility and safety of the highway system, or any other relevant factors.

(c) Documentation. When the commission approves the sale of access to the owner of property adjoining the highway facility, the sale will be accomplished under Transportation Code, Chapter 202, Subchapter B. Access points approved by the commission under this subsection will be specifically described by a metes and bounds property description.

§11.54.Construction and Maintenance of Access Connection Facilities.

(a) For commercial and private driveways, the cost of materials, installation, and maintenance shall be the responsibility of the permittee.

(b) For public driveways, the cost of materials and installation shall be the responsibility of the permittee. The department shall maintain all portions of public access driveways that lie within the state highway right of way and that connect to highways that are the maintenance responsibility of the department.

(c) Any existing access connections that are destroyed or removed in the construction or reconstruction of a section of highway will be reestablished by the department to the extent that they will provide reasonable access.

(d) The department may undertake actions deemed necessary to correct drainage or safety problems related to existing or new access connection facilities.

§11.55.Local Access Roads.

(a) If local access roads are necessary to restore circulation or to resolve a landlock condition on a remaining parcel of land, or will otherwise benefit the highway system under the jurisdiction of the department, local access roads may be included in a department project on a standard participation basis as established in Appendix A of §15.55 of this title (relating to Construction Cost Participation).

(b) Commission approval must be obtained prior to the department entering into any agreements to provide local access roads in conjunction with a department project.

(c) Local access roads will not be considered service projects as defined in §15.56 of this title (relating to Local Financing of Highway Improvement Projects on the State Highway 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 June 30, 2003.

TRD-200303979

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 10, 2003

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

Chapter 24. TRANS-TEXAS CORRIDOR

Subchapter B. DEVELOPMENT OF FACILITIES

43 TAC §24.11

The Texas Department of Transportation (department) proposes new §24.11, concerning comprehensive development agreements.

EXPLANATION OF NEW SECTION

House Bill 3588, 78th Legislature, Regular Session, 2003, added new Chapter 227 to the Transportation Code that allows the department to plan and construct a new set of intermodal transportation facilities that will be known as the Trans-Texas Corridor and that will integrate highway, rail, and utility components. Rules implementing this authority will be part of new Chapter 24.

Transportation Code, §227.023(c) authorizes the department, to the extent and in the manner that the department may enter into comprehensive development agreements under Transportation Code, Chapter 361 with regard to turnpikes, to enter into comprehensive development agreements under Chapter 227 with regard to facilities on the Trans-Texas Corridor. Section 227.023(c) also provides that all provisions of Chapter 361 relating to comprehensive development agreements for turnpikes apply to comprehensive development agreements for facilities under Chapter 227. Rules relating to comprehensive development agreements regarding turnpike projects developed under Chapter 361 are concurrently proposed for adoption in amended §§27.1-27.5, of this title.

New §24.11 provides that to the extent and in the manner that the department may enter into comprehensive development agreements with respect to turnpike projects under §§27.1-27.5, the department may enter into comprehensive development agreements for the financing, design, construction, maintenance, or operation of a facility on the Trans-Texas Corridor.

Section 24.11 requires the department to utilize the processes and procedures provided in §§27.1-27.5 when requesting qualifications and proposals or accepting unsolicited proposals for the financing, design, construction, maintenance, or operation of a facility, when evaluating and ranking submissions and proposals, and when selecting the proposal that provides the best value to the department.

FISCAL NOTE

James Bass, Director, Finance Division, has determined that for each of the first five years the new section as proposed is in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the new section. The authority to enter into comprehensive development agreements for the financing, design, construction, maintenance, or operation of a facility on the Trans-Texas Corridor will be accomplished using existing department staff. There are no anticipated economic costs for persons required to comply with the new section as proposed.

Phillip E. Russell, P.E., Director, Texas Turnpike Authority 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 section.

PUBLIC BENEFIT

Phillip E. Russell, P.E., has also determined that for each of the first five years the new section is in effect, the public benefit anticipated as a result of the new section will be to decrease the time required to develop Trans-Texas Corridor facilities and to facilitate agreements with private participants in projects to develop Trans-Texas Corridor facilities. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed new section may be submitted to Phillip E. Russell, P.E., Director, Texas Turnpike Authority Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on August 11, 2003.

STATUTORY AUTHORITY

The new section 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 Transportation Code, §227.002, which provides the Texas Transportation Commission with the authority to adopt rules as necessary or convenient to implement and administer Chapter 227.

No statutes, articles, or codes are affected by the proposed new section.

CROSS REFERENCE TO STATUTES

Transportation Code, Chapter 227.

§24.11.Comprehensive Development Agreements.

(a) To the extent and in the manner that the department may enter into comprehensive development agreements with respect to turnpike projects under §§27.1-27.5 of this title (relating to Policy, Rules, and Procedures for Private Involvement in Department Turnpike Projects), the department may enter into comprehensive development agreements for the financing, design, construction, maintenance, or operation of a facility on the Trans-Texas Corridor.

(b) The department shall utilize the processes and procedures provided in §§27.1-27.5 of this title when considering the use of a comprehensive development agreement, including when:

(1) requesting qualifications and proposals or accepting unsolicited proposals for the financing, design, construction, maintenance, or operation of a facility;

(2) evaluating and ranking submissions and proposals; and

(3) selecting the proposal that provides the best value to the department.

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

(1) Facility--Has the meaning assigned by Transportation Code, §227.001(4).

(2) Trans-Texas Corridor--The system of multimodal facilities designated under Transportation Code, §227.011.

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 June 30, 2003.

TRD-200303980

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 10, 2003

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

Chapter 25. TRAFFIC OPERATIONS

Subchapter G. SPECIFIC INFORMATION LOGO SIGN PROGRAM

43 TAC §25.406, §25.409

The Texas Department of Transportation (department) proposes amendments to §25.406 and §25.409, concerning the Specific Information Logo Sign Program.

EXPLANATION OF PROPOSED AMENDMENTS

House Bill 2905, 78th Legislature, Regular Session, 2003, added new Subsection (d), to Transportation Code §391.098. This new subsection allows the department's executive director to delegate the approval or denial of variances requested under the Specific Information Logo Sign Program to the director's designee.

Section 25.406, Commercial Establishment Eligibility, is amended to allow the executive director to delegate the approval or denial of variances requested under the Specific Information Logo Sign Program to the director's designee.

Section 25.409, Major Shopping Area Eligibility, is amended to allow the executive director to delegate the approval or denial of variances requested under the Major Shopping Area Guide Sign Program to the director's designee. The Major Shopping Area Guide Sign Program is a specialized portion of the Specific Information Logo Sign Program.

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 to state or local government as a result of enforcing or administering the amendments. The proposed delegation of approval authority will be accomplished using existing department staff. There are no anticipated economic costs for persons required to comply with the amended sections as proposed.

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

PUBLIC BENEFIT

Carlos A. Lopez, P.E., has also determined that for each of the first five years the sections are in effect, the public benefit anticipated as a result of the amendments will be to decrease the time required to process variance requests. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments may be submitted to Carlos A. Lopez, P.E., Director, Traffic Operations Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on August 11, 2003.

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, §391.098, Subsection (d), which allows the department's executive director to delegate the approval or denial of variances for the Specific Information Logo Sign Program.

No statutes, articles, or codes are affected by the proposed amendments.

CROSS REFERENCE TO STATUTES

Transportation Code, Chapter 201 and §391.098.

§25.406.Commercial Establishment Eligibility.

(a)-(c) (No change.)

(d) Variances.

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

(5) The executive director , or the director's designee, may grant a variance if he or she determines it is feasible to place the sign at the requested location and the sign meets the requirements of the Texas MUTCD; and

(A) the variance will substantially promote traffic safety;

(B) the variance will substantially improve traffic flow;

(C) an overpass, highway sign or other highway structure unduly obstructs the visibility of an existing commercial sign; or

(D) the variance is necessary to substantially improve the efficiency and effectiveness of communicating information needed by people to safely and efficiently use the transportation system.

(6) The executive director , or the director's designee, will indicate the reason for granting or denying a variance in writing.

§25.409.Major Shopping Area Eligibility.

(a) (No change.)

(b) Variances.

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

(5) The executive director , or the director's designee, may grant a variance if he or she determines it is feasible to place the sign at the location and the sign meets the requirements of the Texas MUTCD; and

(A) the variance will substantially promote traffic safety;

(B) the variance will substantially improve traffic flow;

(C) an overpass, highway sign, or other highway structure unduly obstructs the visibility of an existing commercial sign; or

(D) the variance is necessary to substantially improve the efficiency and effectiveness of communicating the information needed by people to safely and efficiently use the transportation system.

(6) The executive director , or the director's designee, will indicate the reason for granting or denying a variance in writing.

(7) A variance will not be granted if the executive director , or the director's designee, finds that:

(A) a retail shopping mall is located on an intersecting crossroad or city street whose name can be easily identified with the retail shopping mall and has existing advance and exit guide signs; or

(B) the retail shopping mall's parking is so insufficient that it causes undue congestion of the roadway 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 June 30, 2003.

TRD-200303981

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 10, 2003

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

Chapter 27. TOLL PROJECTS

Subchapter A. POLICY, RULES, AND PROCEDURES FOR PRIVATE INVOLVEMENT IN DEPARTMENT TURNPIKE PROJECTS

43 TAC §§27.1 - 27.5

The Texas Department of Transportation (department) proposes amendments to §§27.1-27.5, concerning policies and procedures for private involvement in department turnpike projects.

EXPLANATION OF PROPOSED AMENDMENTS

House Bill 3588, 78th Legislature, Regular Session, 2003, amended Transportation Code, Chapter 361 by amending Sections 361.302-361.306 and adding Sections 361.3021-361.3024 to amend the requirements and procedures for entering into comprehensive development agreements for department turnpike projects. The amendments to Chapter 361 change the name "exclusive development agreement" to "comprehensive development agreement" and prescribe a detailed process for entering into comprehensive development agreements. The amendments to §§27.1-27.5 implement this process and other requirements of House Bill 3588, and establish a competitive process for selecting the proposal for a turnpike project that offers the best value to the department.

Section 27.1 describes the policy of the department with respect to promoting and obtaining private participation in department turnpike projects, including issuing requests for proposals and accepting unsolicited proposals from private entities to acquire, finance, design, construct, maintain, or operate turnpike projects under a comprehensive development agreement.

Section 27.2 defines words and terms used in §§27.1-27.5, including defining comprehensive development agreement and design, and amending other definitions to be consistent with the provisions of House Bill 3588.

Section 27.3 prescribes general rules for private involvement. The amendments to §27.3 add provisions that apply in connection with the two step process prescribed in House Bill 3588 for the selection of a proposal. The amendments to §27.3 also implement the authority to withdraw a request for qualifications or request for proposals at any time, the requirement to pay a stipulated amount to unsuccessful proposers, and provisions relating to the confidentiality of proposals and related information. Pursuant to Council on Environmental Quality regulations implementing the requirements of the National Environmental Policy Act (42 U.S.C. §4321 et seq.), §27.3 prescribes requirements relating to the department's solicitation or acceptance of proposals in which the proposer is responsible for the environmental review and clearance of the proposed project, or is responsible for providing technical assistance and technical studies to the department or its environmental consultant relating to the environmental review and clearance of the proposed project. The intent of those requirements is to ensure the objectivity of the environmental review and the selection of a project alternative. The amendments to §27.3 clarify that the department may be required by law to contract separately with the environmental consultant, and that a comprehensive development agreement must include provisions relating to making modifications to the agreement necessary to address requirements in the final environmental documents, and the fact that the agreement may be terminated if the "no-build" alternative is selected, or if another alternative is selected that is incompatible with the requirements of the agreement.

Section 27.4 describes how the department will solicit private participation in a department turnpike project. The amendments to §27.4 implement the two step process prescribed in House Bill 3588 for the selection of a proposal. That process requires the issuance of a request for qualifications, and the issuance of a request for proposals from a short-list of proposers that is determined after evaluation of submissions resulting from the request for qualifications. The amendments specify requirements for a request for qualifications or a request for proposals, and prescribe criteria that will be considered in evaluating a request for qualifications or a request for proposals. The amendments to §27.4 also implement the authority to enter into negotiations with the proposer submitting the next highest ranking proposal if, during the course of negotiations, it appears that the highest ranking proposal will not provide the department with the overall best value. The amendments also recognize that applicable law may require the negotiation of a separate contract with an environmental consultant, and include provisions for terminating those negotiations, and implement the requirement to pay a stipulated amount to an unsuccessful proposer that submits a detailed proposal that is responsive to the requirements of the request for proposals.

Section 27.5 describes how the department will accept and process unsolicited proposals for private participation in a department turnpike project. Section 27.5 prescribes information that must be included in a proposal. The amendments to §27.5 implement the process prescribed in House Bill 3588 for the selection of a proposal. That process, as it applies to unsolicited proposals, includes obtaining any necessary clarification of the proposal, the issuance of a request for competing proposals and qualifications, and the issuance of a request for proposals from a short-list of proposers that is determined after evaluation of the original unsolicited proposal and any competing proposals. House Bill 3588 requires an unsolicited proposal along with any competing proposals, and submissions resulting from a request for qualifications to be evaluated in the same manner. The process for determining a short-list, requesting and evaluating proposals, and selecting the proposal providing the best value to the department is also the same as in the case of solicited proposals.

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 to state or local government as a result of enforcing or administering the amendments. The comprehensive development agreement process will be accomplished using existing department staff. There are no anticipated economic costs for persons required to comply with the amended sections as proposed.

Phillip E. Russell, P.E., Director, Texas Turnpike Authority 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.

PUBLIC BENEFIT

Phillip E. Russell, P.E., has also determined that for each of the first five years the sections are in effect, the public benefit anticipated as a result of the amendments will be to clarify and streamline the process for promoting and obtaining private involvement in department turnpike projects and to facilitate agreements with private participants in those projects. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments may be submitted to Phillip E. Russell, P.E., Director, Texas Turnpike Authority Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on August 11, 2003.

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department, and Transportation Code, §361.032, which requires the commission to adopt rules for the implementation and administration of Transportation Code, Chapter 361.

No statutes, articles, or codes are affected by the proposed amendments.

CROSS REFERENCE TO STATUTES

Transportation Code, Chapter 361, Subchapter I.

§27.1.Statement of Policy.

(a) It is the policy of the department to consider the feasibility of private involvement in every turnpike project it undertakes. The objectives of this policy are to:

(1) expand the scope of turnpike projects studied;

(2) accelerate the construction and completion of turnpike projects;

(3) reduce the overall costs of a turnpike project; and

(4) maximize the benefits of turnpike project facilities.

(b) To encourage private participation, the department may issue requests for proposals [ (RFPs) ] from private entities to acquire, design, finance, construct, maintain, or operate [ , extend or expand ] turnpike projects under a comprehensive development agreement [ pursuant to the provisions of the Turnpike Act ]. The department will also accept unsolicited proposals from private entities to acquire, design, finance, construct, maintain, or operate turnpike projects under a comprehensive development agreement [ at any time ], and will evaluate those proposals in accordance with these rules and the Turnpike Act. The department will consider the extent to which private involvement in existing and future turnpike projects of the department is practicable and beneficial, and will analyze whether department participation is practicable and beneficial with respect to projects proposed by responsible private parties. The department may formulate selection criteria for its use in considering the private entities with which the department may contract to undertake responsibilities for its projects, as well as for evaluation of projects suggested to the department as suitable for private participation.

(c) These rules apply to private involvement in the acquisition, design, financing, [ development, ] construction, maintenance, [ improvement, extension, expansion ] or operation of all or substantially all of a turnpike project or of multiple turnpike projects. These rules are not intended to limit or otherwise apply to the department's procurement of goods and services in the ordinary course of its operations, for which the department may seek private participation in accordance with the Turnpike Act and other applicable laws, rules, and policies.

§27.2.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) Comprehensive development agreement--An agreement with a private entity that, at a minimum, provides for the design and construction of a turnpike project and may also provide for the financing, acquisition, maintenance, or operation of a turnpike project.

[(2) Conceptual proposal--An unsolicited proposal requesting department participation in a turnpike project that generally describes the project, anticipated costs associated with the project, and the expected level of department participation.]

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

(4) Design--Includes planning services, technical assistance, and technical studies provided in support of the environmental review process undertaken with respect to a turnpike project, as well as surveys, investigations, the development of reports, studies, plans and specifications, and other professional services provided for a project.

[(4) Detailed proposal--An unsolicited proposal requesting department participation in a turnpike project that contains the information described in §27.5(1) of this subchapter.]

(5) Proposal review fee--A fee prescribed by these rules that must be tendered with any [ solicited or ] unsolicited proposal or with any proposal submitted under §27.5(d) of [ pursuant to ] this subchapter.

(6) Request for proposals [ (RFP) ]--A [ detailed ] request for submittal of a detailed proposal from private entities to acquire, design, finance, construct, maintain, or operate [ , extend or expand ] turnpike projects pursuant to the Turnpike Act.

(7) Request for qualifications--A request for submission by a private entity of a description of that entity's experience, technical competence, and capability to complete a proposed project, and a proposed financial plan for the proposed project.

(8) [ (7) ] Turnpike Act--Transportation Code, Chapter 361 [ 361.001 et seq ].

(9) [ (8) ] Turnpike project--A toll highway constructed, maintained or operated under Transportation Code, Chapter 361 as part of the state highway system and any improvement, extension or expansion to the highway, including:

(A) a facility to relieve traffic congestion and promote safety;

(B) a bridge, tunnel, overpass, underpass, interchange, entrance plaza, approach, toll house, service road, ramp, or service station;

(C) an administration, storage, or other building the department considers necessary to operate the project;

(D) property rights, easements and interests the department acquires to construct or operate the project;

(E) a parking area or structure, rest stop, park, and any other improvement or amenity the department considers necessary, useful, or beneficial for the operation of a turnpike project; and

(F) a toll-free facility that is appurtenant to and necessary for the efficient operation of a turnpike project, including a service road, access road, ramp, interchange, bridge, or tunnel.

§27.3.General Rules for Private Involvement.

(a) The rules in this subchapter address the manner by which the department intends to evaluate submissions [ proposals ] received from private entities in response to requests for qualifications and proposals [ (RFPs) ] issued by the department, as well as unsolicited proposals received by the department. The department reserves all rights available to it by law in administering these rules, including without limitation the right in its sole discretion to:

(1) withdraw a request for qualifications or a request for proposals at any time, and issue a new request;

(2) [ (1) ] reject any and all proposals, whether solicited or unsolicited, at any time;

(3) [ (2) ] terminate evaluation of any and all proposals, whether solicited or unsolicited, at any time;

(4) issue a request for qualifications relating to a project described in an unsolicited proposal after the rejection or termination of the evaluation of the proposal and any competing proposals;

(5) [ (3) ] suspend, discontinue, or terminate comprehensive [ exclusive ] development agreement negotiations with any proposer at any time prior to the actual authorized execution of such agreement by all parties;

(6) [ (4) ] negotiate with a proposer without being bound by any provision in its proposal, whether solicited or unsolicited;

(7) [ (5) ] request or obtain additional information about any proposal, whether solicited or unsolicited;

(8) [ (6) ] modify, issue addenda to, or cancel any request for qualifications or request for proposals [ RFP ];

(9) [ (7) ] revise, supplement, or make substitutions for all or any part of these rules; or

(10) [ (8) ] retain or return all or any portion of the fees required to be paid by proposers under this subchapter.

(b) Except as provided in §27.4(n) of this subchapter, under [ Under ] no circumstances will the state, the department, or any of their agents, representatives, consultants, directors, officers or employees be liable for, or otherwise obligated to reimburse, the costs incurred by proposers, whether or not selected for negotiations, in developing solicited or unsolicited proposals or in negotiating agreements. Any and all information the department makes available to proposers shall be as a convenience to the proposer and without representation or warranty of any kind except as may be specified in the request for qualifications or request for proposals . Proposers may not rely upon any oral responses to inquiries. If a proposer has a question regarding these rules or any request for qualifications or request for proposals [ RFP ] issued by the department, the proposer must submit the question in writing to the person responsible for receiving all submissions [ proposals ] and the department will provide the answers in writing. In submitting any proposal, whether solicited or unsolicited, the proposer shall be deemed to have unconditionally and irrevocably consented and agreed to the foregoing provisions and all other provisions of these rules.

(c) All proposals, whether solicited or unsolicited, submitted to the department become the property of the department and may be, except as provided by Transportation Code, §361.3023, [ are ] subject to the Public Information Act, Government Code, Chapter 552. Proposers should familiarize themselves with the provisions of Transportation Code, §361.3023 and the Public Information Act [ that act ]. In no event shall the state, the department, or any of their agents, representatives, consultants, directors, officers, or employees be liable to a proposer for the disclosure of all or a portion of a proposal submitted under this subchapter. If the department receives a request for public disclosure of all or any portion of a proposal, the department will [ use reasonable efforts to ] notify the applicable proposer of the request and inform [ give ] such proposer that it has an opportunity to assert, in writing, a claimed exception under the Public Information Act or other applicable law within the time period specified in the department's notice and allowed under the Public Information Act. [ Provided that the department receives the proposer's written assertions for the exception of identified materials within the time period specified in the department's notice, the department will forward those assertions to the Office of the Attorney General with the department's request for a determination of the matter. ] If a proposer has special concerns about information it desires to make available to the department, but which it believes constitutes a trade secret, proprietary information or other information excepted from disclosure, the proposer should specifically and conspicuously designate that information as such in its proposal.

(d) A nonrefundable and nonnegotiable proposal review fee may be required for any unsolicited proposal submitted under this subchapter or for any proposal submitted under §27.5(d) of this subchapter [ , whether solicited or unsolicited ]. The proposal review fee shall be applied by the department to offset the cost of processing and reviewing the applicable proposals. [ With respect to a proposal submitted in response to an RFP issued by the department, the proposal review fee, if any, shall be the amount specified in the RFP. ] Any unsolicited proposal must be accompanied by a proposal review fee of $20,000 [ , except as provided in §27.5(2) of this subchapter ]. The proposal review fee for any proposal submitted during the period described in §27.5(d) [ §27.5(1)(D) ] of this subchapter shall be $20,000, unless otherwise expressly provided in the department's notice described in that section. Failure to submit the required proposal review fee, if any, shall bar the department's consideration of the applicable proposal. All fees shall be submitted in the form of a cashier's check made payable to the department.

(e) All proposals, whether solicited or unsolicited, should be as thorough and detailed as possible so that the department may properly evaluate the potential feasibility of the proposed project as well as the [ proposer's ] capabilities of the proposer and its team members to provide the proposed services and complete the proposed project.

(f) Studies that the department deems necessary as to route designation, civil engineering, traffic and revenue, environmental compliance, and any other matters will be assigned, conducted, and paid for as negotiated between the department and the successful proposer and set forth in the comprehensive [ exclusive ] development agreement or in any separate contract for consultant services . Unless otherwise provided in the request for proposals [ RFP ] issued with respect to a solicited proposal, the department will favor proposals, whether solicited or unsolicited, in which the costs for studies will be advanced by the private developer [ proposer ]. The department reserves the right to discharge, in whole or in part, the costs for such studies in its sole discretion and pursuant to the Turnpike Act. The department may require that the financial plan for each proposal, whether solicited or unsolicited, provide for reimbursement of all related expenses incurred by the department, as well as any department study funds utilized, in connection with the project.

(g) The department, in its sole discretion, may authorize the successful proposer to seek licensing, permitting, approvals, and participation required from other governmental entities and private parties, subject to such oversight and review by the department as specified in the comprehensive [ exclusive ] development agreement or in any separate contract for consultant services .

(h) The department may solicit proposals or accept unsolicited proposals in which the proposer is responsible for the environmental review and clearance of the proposed project , or is responsible for the provision of technical assistance and technical studies to the department or its environmental consultant relating to the environmental review and clearance of the proposed project . The environmental review and the documentation of that review shall at all times be conducted as directed by the department and subject to the oversight of the department, and shall comply with all requirements of state and federal law, applicable federal regulations, and the National Environmental Policy Act (42 U.S.C. §4321 et seq.), if applicable, including but not limited to the study of alternatives to the proposed project and any proposed alignments, procedural requirements, and the completion of any and all environmental documents required to be completed by the department and any federal agency acting as a lead agency. The department [ and any federal agency acting as a lead agency ]:

(1) shall determine the scope of work to be performed by the private developer or its consultant or subcontractor [ necessary and adequate to conduct and complete the environmental review and documentation ];

[ (2) may require the department to contract directly with the consultant or subcontractor that will perform the environmental review if necessary to comply with applicable law;]

[ (3) shall require the consultant or subcontractor selected to perform the environmental review to report directly to the department and remain under the ultimate direction of the department;]

[ (4) shall require the consultant or subcontractor selected to perform the environmental review to execute a disclosure statement approved by the department certifying that the consultant or subcontractor has no financial or other conflicting interest in the outcome of the environmental review and approval process or the proposed project;]

(2) [ (5) ] shall specify the level of design , alternatives to be reviewed, impacts to consider, and other information to be provided [ developed ] by the private developer or its consultant or subcontractor [ selected to perform the environmental review and to supervise the gathering, analysis, and presentation of this information ]; and

(3) [ (6) ] shall independently review any studies [ , modify, and approve all statements, analyses, ] and conclusions reached [ included in any environmental documents prepared ] by the private developer or its consultant or subcontractor before their inclusion in an [ selected to perform the ] environmental document [ review ].

(i) Completion of the environmental review and obtaining all applicable state and federal environmental permits and approvals is required before the private developer may be authorized to conduct and complete the final design and start construction of a project. Unless and until that occurs, the department is not bound to any further development of the project. The department and any federal agency acting as a lead agency may select an alternative other than the one in the proposed project, including but not limited to the "no-build" alternative. A comprehensive development agreement shall provide that the agreement will be modified as necessary to address requirements in the final environmental documents, and shall provide that the agreement may be terminated if the "no-build" alternative is selected or if another alternative is selected that is incompatible with the requirements of the agreement.

(j) All public meetings or hearings required to be held pursuant to applicable law or regulation will be directed and overseen by the department, with participation by such other parties as it deems appropriate.

(k) Any matter not specifically addressed in this subchapter which pertains to the acquisition, design, financing, construction, maintenance, or operation [ , extension or expansion ] of a turnpike project pursuant to this subchapter shall be deemed to be within the primary purview of the commission, and all decisions pertaining thereto, whether or not addressed in this subchapter, shall be as determined by the commission, subject to the provisions of the Turnpike Act and other applicable law.

§27.4.Solicited Proposals.

(a) If the department develops a concept for private participation in a turnpike project, it will solicit participation in accordance with the requirements of this section . [ : ]

(b) [ (1) ] The department will set forth the basic criteria for professional expertise, financial capability, and end-product expectations in a request for qualifications [ proposal (RFP) ] and will publish it at a minimum in the Texas Register and in one or more newspapers of general circulation in this state. The department may also elect to furnish the request for qualifications [ RFP ] to businesses in the private sector that the department otherwise believes might be interested and qualified to participate in the turnpike project which is the subject of the request for qualifications [ RFP ].

(c) [ (2) ] At its sole option, the department may elect to furnish conceptual designs, fundamental details, or detailed plans of the proposed project in the request for qualifications [ RFP ].

(d) The request for qualifications [ RFP ] may request one or more conceptual approaches to bring the turnpike project to fruition. The request for qualifications shall request a proposed financial plan for the project that includes projected project costs and proposed sources of funds.

(e) The department, after evaluating the submissions received in response to a request for qualifications, will identify those entities that will be considered qualified to submit detailed proposals for a proposed project. In evaluating the submissions, the department will consider each entity's financial condition, management stability, technological capability, experience, staffing, organizational structure, project commitment, and such other qualities that the department considers relevant to the successful completion of the project. The request for qualifications will include the criteria used to evaluate the submissions and the relative weight given to the criteria. The department shall advise each entity providing a submission whether it is on the "short-list" of qualified entities.

(f) The department will issue a request for proposals from all private entities qualified for the short-list, consisting of the submission of detailed documentation regarding the turnpike project. The request for proposals may require the submission of additional information relating to:

(1) the proposer's qualifications and demonstrated technical competence;

(2) the feasibility of developing the project as proposed;

(3) detailed engineering or architectural designs;

(4) the proposer's ability to meet schedules;

(5) a detailed financial plan, including costing methodology; or

(6) any other information the department considers relevant or necessary.

[ (3) The department may elect for the RFP to require that solicited proposals be submitted and evaluated according to a two-phase process. In that case, the first phase will require that a conceptual proposal be submitted for prequalification or "conceptual" review; the second phase then will consist of the submission from all or a "short-list" of the original proposers of detailed documentation regarding the turnpike project. The RFP may require that a portion of the total proposal review fee (as specified in the RFP) be tendered with the submittal in each phase of a two-phase process. Alternatively, the RFP may provide for a single-phase submission and evaluation process. The determination of whether to utilize a two-phase or a single-phase procedure shall be based on the relative complexity of the turnpike project which is the subject of the RFP, as determined in the sole discretion of the department.]

(g) If the department solicits proposals in which an entity affiliated with the private developer will act as the department's environmental consultant for the proposed project, the request for proposals may require the submission of a consolidated joint proposal from the private developer and the environmental consultant or subcontractor that results in a comprehensive development agreement and separate contract for environmental review services.

(h) [ (4) ] The proposals will be evaluated by the department as to their feasibility (including the reasonableness of the financial plan), realistic time frame, assumptions (including those related to ownership, legal liability, law enforcement and operation of the project), forecasts, financial exposure and benefit to the department, compatibility with other planned or existing transportation facilities, likelihood of obtaining necessary approvals and other support, cost and pricing, toll rates and projected usage, scheduling, environmental impact, manpower availability, use of technology, governmental liaison, and project coordination, with attention to efficiency, quality of finished product and such other criteria, including conformity with department policies, guidelines and standards, as may be deemed appropriate by the department to maximize the overall performance of the project and the resulting benefits to the state. Specific evaluation criteria and requests for pertinent information will be set forth in the request for proposals [ RFP ].

[ (5) In accordance with the terms of the RFP, each proposer will be evaluated to determine its financial condition, management stability, technological capability, experience, staffing, organizational structure, project commitment, and such other qualities that the department considers relevant to the successful completion of the project.]

(i) [ (6) ] Based on the evaluation and the evaluation criteria described under subsection (h) [ paragraphs (4) and (5) ] of this section, the department will rank all proposals that are complete, responsive to the request for proposals [ RFP ], and in conformance with the requirements of this subchapter , and may select the private entity whose proposal offers the apparent best value to the department . If the request for proposals provides for a consolidated joint proposal to be submitted for a separate environmental consultant contract as well as the comprehensive development agreement, the request for proposals shall specify how the two parts of the proposal will be evaluated in making the overall best value determination. The proposers will be notified in writing of the department's rankings. The department shall also make the rankings available to the public.

(j) [ (7) ] Final selection of any proposal will be dependent, in part, on the adequacy of the financial plan presented in that proposal. The department will review the adequacy of the financial plan presented in the proposal and determine if it is based on reasonable financial assumptions.

(k) [ (8) ] Only if a proposal is determined to be financially feasible and to provide a reasonable basis for further development of the proposal will the department then attempt to negotiate a comprehensive [ an exclusive ] development agreement with that party to construct, maintain, repair, or operate [ , extend or expand ] the turnpike project and (if included in the request for proposals) an environmental consultant contract . The Attorney General or the Attorney General's designated representative will be included in the negotiations with the proposer. If a comprehensive [ an exclusive ] development agreement satisfactory to the department cannot be negotiated with that proposer, the department will formally end negotiations with that proposer and, in its sole discretion, either:

(1) [ (A) ] reject all proposals;

(2) [ (B) ] terminate or suspend the evaluation of all proposals;

(3) [ (C) ] cancel the request for proposals [ RFP ];

(4) [ (D) ] modify the request for proposals [ RFP ] and begin again [ recommence ] the submission of proposals; or

(5) [ (E) ] proceed to the next most highly ranked proposal and attempt to negotiate a comprehensive [ an exclusive ] development agreement with that party in accordance with this paragraph.

(l) If an environmental consultant contract satisfactory to the department cannot be negotiated with the selected consultant, the department may elect to terminate negotiations and proceed with the negotiation of the comprehensive development agreement only.

(m) If during the course of negotiations with the highest ranking proposer it appears that the proposal will not provide the department with the overall best value, the department may enter into negotiations with the proposer submitting the next highest ranking proposal.

(n) The request for proposals shall, as authorized under Transportation Code, §361.3022(m) and other applicable law, stipulate the amount of money the department will pay to an unsuccessful proposer that submits a detailed proposal that is responsive to the requirements of the request for proposals.

§27.5.Unsolicited Proposals.

(a) Private entities may submit unsolicited proposals to the department requesting participation in a turnpike project to be constructed pursuant to the Turnpike Act. Unsolicited proposals that comply with the requirements of this section [ shall be designated by the proposer as a "Detailed Proposal" or a "Conceptual Proposal," and ] shall be processed in accordance with the requirements of this section.

[ (1) Detailed Proposals.]

(b) [ (A) ] A [ detailed ] proposal requesting department participation in a proposed turnpike project shall be filed with the department and must include the following information:

[ (i) the name, address, and professional designation of each member of the proposer's management team and of other key employees or consultants;]

(1) [ (ii) ] the limits [ description ], scope, and location of the proposed project , including all proposed interconnections with other transportation facilities ;

(2) [ (iii) ] the results expected from project implementation and the critical factors for the project's success;

(3) [ (iv) ] all studies previously completed concerning the project;

[ (v) a general conceptual plan which includes, at a minimum, all proposed interconnections with other transportation facilities and information responsive to the evaluation criteria listed in §27.4(4) of this subchapter;]

(4) [ (vi) ] 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, the capability of the proposer to develop the proposed project, and information responsive to the evaluation criteria listed in §27.4(e) [ §27.4(5) ] of this subchapter;

[ (vii) a description of all federal, state, and local permits and approvals, together with documentation of support by appropriate public entities required for the project, and a schedule and methodology for obtaining permits, approvals, and support;]

(5) a proposed financial plan for the proposed project that includes, at a minimum, projected project costs and proposed sources of funds;

[(viii) a detailed financial plan, including that information necessary for the department to determine the adequacy and feasibility of the financial plan under §27.4(7) of this subchapter;]

(6) [ (ix) ] a specific description of the level and nature of participation sought from the department;

(7) [ (x) ] information necessary for the department to carry out its environmental review responsibilities under §27.3(h) and (i) of this subchapter;

(8) [ (xi) ] a listing of anticipated opponents and a description of potential social, economic, and environmental impacts, and potentially competing facilities and proposers;

(9) [ (xii) ] other information of probable interest to the department; and

(10) [ (xiii) ] the proposal review fee of $20,000 in the form prescribed by §27.3(d) [ §27.3 ] of this subchapter.

(c) [ (B) ] Any [ detailed ] proposal properly filed with the department in accordance with subsection (b) [ subparagraph (A) ] of this section [ paragraph ] and accompanied by the proper proposal review fee will be reviewed by the department. The department may meet with the proposer as necessary to clarify the proposal, or may issue requests for clarification. Based on that review and any clarification , an initial recommendation will be made to the commission as to whether the department should further evaluate its requested participation in the applicable turnpike project. That recommendation shall be based on whether the proposed project:

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

(2) [ (ii) ] furthers state, regional, and local transportation plans, programs, policies, and goals, as well as the proposal's responsiveness to such other evaluation criteria as the department deems relevant.

(d) [ (C) ] If the initial recommendation is that the department further evaluate its requested participation in the applicable turnpike project and the commission approves that recommendation, the department will publish notice of that decision and provide an opportunity for the submission of competing proposals and qualifications as provided in this section. The department will publish a notice in the Texas Register and in one or more newspapers of general circulation in this state. The notice will state that the department has received an unsolicited proposal under these rules and the Turnpike Act, that it intends to evaluate the proposal, that it may negotiate a comprehensive [ an exclusive ] development agreement with the proposer based on the proposal, and that it will accept for simultaneous consideration any competing proposals and qualifications that the department receives in accordance with these rules within 45 days of the initial publication of the notice in the Texas Register, or such additional time as authorized by commission order. In determining whether to authorize additional time for submission of competing proposals and qualifications , the commission will consider the complexity of the proposed project. The notice will summarize the proposed turnpike project, identify its proposed location and interconnections with other transportation facilities, and provide a conceptual design. The department also may provide traffic counts, forecasts, and other available data either in the notice or upon request of any party responding to the notice. The notice will also specify the criteria that will be used to evaluate the unsolicited proposal and any competing proposals, and the relative weight given to the criteria. A proposal submitted in response to a notice must contain the information required by subsection (b) of this section.

(e) [ (D) ] Failure by a prospective proposer to submit a competing proposal, together with the proper proposal review fee in the form prescribed by §27.3(d) of this subchapter , within the 45-day period or such additional time as authorized by the commission, shall preclude the proposal from consideration by the department unless and until the department terminates consideration of, or negotiations on, the original unsolicited proposal and any and all competing proposals received within that time period. The department will not grant requests to extend the time period to submit competing proposals; and the receipt of one or more competing proposals during that period will not trigger the posting or publication of a new notice or the commencement of any new time period.

(f) [ (E) ] The department recognizes that it may receive proposals that have certain characteristics in common with the original unsolicited proposal, yet differ in other material respects. In those cases, the department reserves the right, in its sole discretion, to treat such a proposal as either a competing proposal or a noncompeting proposal. Because of the consequences to a proposer of failing to submit a proposal that the department could later deem a competing proposal within the 45-day period, or such additional time as authorized by the commission, prospective proposers are strongly urged to monitor the department's notices of unsolicited proposals received, and be prepared to submit within that time period if they perceive that a proposal they are considering or are preparing bears certain similarities to, or has characteristics in common with, an unsolicited proposal which is the subject of a notice.

(g) [ (F) ] Upon the expiration of the 45-day period, or such additional time as authorized by the commission, the department will subject the original unsolicited proposal, together with any and all properly submitted competing proposals, to the following [ single-phase ] evaluation [ and selection ] process. If one or more properly submitted competing proposals are received, the department shall review [ and rank ] the proposals, together with the original unsolicited proposal, utilizing the evaluation criteria set forth in §27.4(e) [ §27.4(4) and (5) ] of this subchapter and the request for competing proposals and qualifications, and the information specified in subsection (b) [ subparagraph (A) ] of this section [ paragraph ]. The department will identify those proposers that will be considered qualified to submit detailed proposals for the proposed project, [ proposers will be notified of the department's rankings, ] and the process will proceed in the manner described in §27.4(e)-(n) [ §27.4(7) and (8) ] of this subchapter [ including, without limitation, the participation of the Attorney General or the Attorney General's designated representative in the negotiation of an exclusive development agreement ].

[(i) If no properly submitted competing proposal is received, the department will attempt to negotiate an exclusive development agreement for the project described in the original unsolicited proposal with the proposer submitting that proposal. ]

[(ii) The Attorney General or the Attorney General's designated representative will be included in the negotiation with the proposer. If an exclusive development agreement satisfactory to the department cannot be negotiated with that proposer, the department shall formally end the evaluation of the original unsolicited proposal and all negotiations with the proposer submitting that proposal.]

[ (2) Conceptual Proposals. A conceptual proposal requesting department participation in a proposed turnpike project must be filed with the department and be accompanied by a $5,000 proposal review fee. At a minimum, a conceptual proposal must include a general description of the turnpike project, anticipated costs associated with the project, the expected level of department participation, and a designated contact for the proposer. Conceptual proposals shall be reviewed by the department. Based on that review, an initial recommendation will be made to the commission as to whether the department should request that the proposer submit a follow-up proposal containing the information described in paragraph (1)(A) of this section. If the recommendation is that the department request that the proposer submit a follow-up proposal and the commission approves that recommendation, the department shall notify the proposer in writing of the request. The proposer shall have 45 days from the date of receipt of the request, or such additional time as authorized by commission order, in which to submit the follow-up proposal, which must be accompanied by a proposal review fee in the amount of $15,000. In determining whether to authorize additional time for the submission of the follow-up proposal, the commission will consider the complexity of the proposed project. Once received, the follow-up proposal shall be considered as a detailed proposal and shall be processed in accordance with the procedures set forth in paragraph (1)(B) - (F) of this section.]

(h) If no properly submitted competing proposal is received, the department will request a detailed proposal containing the information described in §27.4(f) of this subchapter from the proposer submitting the original unsolicited proposal, and will proceed, to the extent applicable, in the manner described in §27.4(g)-(n) of this subchapter.

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

Filed with the Office of the Secretary of State on June 30, 2003.

TRD-200303982

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 10, 2003

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