Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 2.
ENVIRONMENTAL POLICY
Subchapter B. MEMORANDA OF UNDERSTANDING WITH NATURAL RESOURCE AGENCIES
The Texas Department of Transportation (department) adopts amendments
to §2.21, concerning purpose, the repeal of §2.24, concerning memorandum
of understanding with the Texas Historical Commission, and simultaneously
adopts new §2.24 concerning memorandum of understanding with the Texas
Historical Commission (THC). New §2.24 is adopted with changes to the
proposed text as published in the February 13, 2004, issue of the
Texas Register
(29 TexReg 1307). The amendments to §2.21 and the
repeal of §2.24 are adopted without changes to the proposed text as published
in the February 13, 2004, issue of the
Texas Register
(29 TexReg 1307) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS, REPEAL, AND NEW SECTION
Transportation Code, §201.607, requires the department to adopt a
memorandum of understanding (MOU) with each state agency that has responsibilities
for the protection of the natural environment, the preservation of the natural
environment, or for the preservation of historic or archeological resources.
Section 201.607 also requires the department to adopt the MOU and all revisions
by rule and to periodically evaluate and revise the MOU. In order to meet
the legislative intent and to ensure that historic and archeological resources
are given full consideration in accomplishing the department’s activities,
the department has evaluated the MOU adopted in 1998 and finds it necessary
to repeal existing §2.24 and simultaneously adopt new §2.24.
Section 2.21 is amended to update a statutory citation from Texas Civil
Statutes to Transportation Code, §201.607, and to update the term "article"
to "section."
The adopted new MOU between THC and the department satisfies the statutory
requirement for reviewing and revising MOUs with resource agencies. It also
replaces the existing MOU, which has been in effect since December 13, 1998,
with an MOU that streamlines THC’s review of the department’s
projects and simultaneously allows THC to focus on those projects with significant
historic and archeological concerns. The adopted MOU has many new provisions
and procedures that were developed based on experience gained from numerous
projects that the department has submitted and THC has reviewed since the
December 13, 1998. MOU was executed.
The adopted new MOU seeks to expedite the project review process by classifying
and specifying new responsibilities of each agency relating to the review
of a department project. Another objective of this MOU is to focus THC resources
on projects that may adversely affect significant historic and archeological
resources.
The adopted new MOU seeks to meet these objectives by evaluating and classifying
projects to better determine the appropriate level of review. The MOU identifies
certain types of projects that experience has shown are unlikely to have any
adverse effects to historic or archeological resources. These projects include
routine maintenance activities (e.g., repaving existing roads) and other common
projects that are unlikely to cause negative effects (e.g., landscaping, and
constructing bike and pedestrian paths). Under the adopted new MOU, these
and similar projects will not require THC review.
Another category of projects warrant review, but not necessarily automatic
individual coordination with THC. For these projects, the department is required
to investigate, evaluate, and document information that demonstrates that
no individual coordination is automatically required in advance under the
criteria specified in the MOU. If the department’s evaluation determines
that individual coordination is appropriate for a given project, that project
would move to the next higher level of review, individual coordination. Under
this MOU, the department must utilize personnel from its staff or consultants
that meet the federal and state standards for historic architects, historians,
and archeologists that review transportation projects.
Although there are expedited procedures for projects identified as not
requiring THC review and projects that the department is required to evaluate
and document as not requiring individual coordination with THC, there are
criteria and procedures in the MOU to ensure that appropriate investigation,
evaluation, and classification occur. If the department determines, during
the investigation or evaluation, that a project would have an adverse effect
on historic and archeological resources, that project would be submitted to
the THC for individual review. The MOU requires the department to individually
coordinate projects with THC in cases where the evaluation shows that the
project would have an adverse effect on historic and archeological resources.
The MOU provides for THC oversight of this process. Under the MOU, the department
is required to submit to THC a quarterly report of projects not individually
coordinated. THC may also audit the department or request information about
any given project at any time.
The next level of review is for those projects that require individual
coordination. For these projects, the MOU requires the department to provide
all the information that is needed for a comprehensive review of the project
by THC. THC has agreed to review the information within 20 days.
In some cases, a project potentially affecting a significant archeological
or historic site may be resolved with only one submission to THC. For example,
the department could submit an effects evaluation that shows to THC’s
satisfaction that the site will be avoided. In other cases, the department
will be required to provide additional information, mitigation proposals,
permit applications, final reports, etc.
One goal of the MOU is to enable THC staff to spend more time on these
larger or more complex projects that require more extensive individual review,
evaluation, and negotiation. It is anticipated that the expedited review of
projects that do not require individual coordination will allow THC staff
to have the time available to perform these more intense reviews of projects
individually coordinated.
It is also the goal of the MOU to use THC resources for early evaluation
of large projects (e.g., projects involving construction of the Trans Texas
Corridor) that are considered to potentially have adverse effects on historic
and archeological resources. The department hopes to avoid or minimize any
adverse effects from large projects through early coordination and collaboration
with THC in the project planning process.
SUBSECTION BY SUBSECTION ANALYSIS OF ADOPTED NEW SECTION
Subsection (a) states the purpose of the MOU. This subsection expresses
both agencies’ intent to make the project review process more efficient.
Subsection (b) cites the authorities that allow for the drafting of a MOU
to increase effective coordination between agencies. To implement provisions
of the MOU, it is the express intent of the department and THC to enter into
a programmatic agreement that adopts similarly streamlined procedures for
projects that are federally assisted, permitted, or licensed.
Subsection (c) defines some of the words and terms used in this MOU. These
definitions are intended to clarify the scope and nature of evaluations and
reviews conducted under this MOU. Section 2.24(c) has been adopted with changes
to add a definition of the term "environmental document" which is used in
the MOU but was not defined in the proposed version.
Subsection (d) sets forth the responsibilities of the department and THC
as they relate to this MOU. It includes a commitment by the department to
establish a funding agreement to support THC’s commitment to streamlined
project review, and a commitment by THC to use that funding agreement only
for department projects and in the most efficient manner that achieves streamlining.
Subsection (e) provides for early coordination between the department and
THC. This subsection expresses THC and department agreement that routine roadway
maintenance projects do not require review by THC. Section 2.24(e) is adopted
with changes because the department believed clarification was needed in this
section of the MOU. The department modified the section with THC’s concurrence
to note that these projects would not merit review unless graves are present
or the maintenance affects historic bridges, highways, picnic areas, or rest
areas, or the maintenance work would involve more than 100 cubic yards of
excavation below the original grade. This subsection expresses both agencies’
commitment to identify and apply a broad range of strategies to comply with
the Antiquities Code of Texas, Natural Resources Code, Chapter 191 (ACT).
This subsection specifies how the department will ensure that the public and
interested parties, including federally recognized Indian tribes, will be
afforded the opportunity to provide input about potential impact to historic
properties. This subsection provides for independent evaluation of public
comments or new information by the department and THC.
Subsection (f) states the circumstances under which Antiquities Permits
will be required for archeological investigations to be performed in conjunction
with the department’s projects. This subsection expresses the procedures
the department will use to determine if archeological sites are present and,
if present, to determine their significance, and coordinate adverse effects
with THC. If no sites are found or if sites are found but are not recommended
for further work, this subsection states that the projects will not require
individual review and will be reported to THC as part of a quarterly report.
If a project is individually coordinated with THC, this subsection specifies
that THC will have 20 days to complete review of the project and its potential
effects on significant sites. Depending on the project and site, the department
may be required to make additional submissions or take additional actions.
Section 2.24(f) is adopted with changes, with THC's concurrence, to note that
if the THC does not respond within 20 days, the department may assume THC's
concurrence with its determination and may proceed with the project in accordance
with the procedures required in the MOU. This subsection also provides for
alternative mitigation and public outreach efforts, where appropriate. Subsection
(f) is also adopted with changes to eliminate references in the subsection
to principal investigators. Principal investigators are either staff of the
department or are consultants hired by the department. As such, they are an
arm of the department and do not need to be singled out in the MOU. This provision
would allow the department, subject to THC approval, to develop mitigation
strategies that address specific stakeholder concerns and unusual circumstances.
This subsection also sets forth the process that the department and THC will
use when archeological sites are found after award of contract. Finally, this
subsection outlines how artifacts will be recovered and curated.
Subsection (g) pertains to coordination procedures for non-archeological
historic sites. This subsection identifies the types of projects that do not
require individual coordination with THC, and specifies how the department
will make that determination. A quarterly report of projects that do not require
individual coordination will be provided to THC. THC reserves the right to
audit such projects to ensure that the department has made appropriate determinations.
In addition to the quarterly report and audit provisions, THC may request
information on a given project while the department is evaluating and making
the determinations authorized by this MOU.
Subsection (h) specifies how non-archeological historic-age properties
will be identified and evaluated. This subsection establishes the procedures
that will be used to identify and evaluate historic-age bridge-class structures.
Subsection (i) specifies how the department will assess and mitigate effects
of its projects on non-archeological historic properties, particularly historic
bridges, and how the department will coordinate those effects with THC. This
subsection specifies that THC will have 20 days to complete its review of
the department's assessment of effects and proposed mitigation. Depending
on the project and site, the department may be required to make additional
submission or take additional action. If THC objects to the department’s
assessment of effects or proposed mitigation and the dispute cannot be resolved, §2.24(p)
would govern dispute resolution. Subsection (p) applies not only to effects
assessments and mitigation, but also to other situations such as if THC does
not grant the department required approvals.
Subsection (j) specifies the documentation that the department must maintain
in its files for each project that is included in the quarterly report, and
the documentation that the department must submit to THC for projects that
are individually coordinated with THC. The period allotted for THC to respond
to report submittals is 20 days.
Subsection (k) requires that applicable environmental documents summarize
the department’s efforts to comply with its responsibilities to identify
historic and archeological sites, determine project-specific effects on such
properties, and minimize or mitigate those effects.
Subsection (l) allows the department to make a commitment to complete its
archeological responsibilities prior to any construction-related impacts if
right of entry to private land is denied during environmental studies. This
provision is intended to address cases where the department is denied access
during preliminary or early surveys or studies. Although this provision would
be applicable if the department ultimately acquired the property, it is not
intended to place any obligation on the department to do so.
Subsection (m) describes that the department may use the procedures of
this MOU, which has been developed with THC specifically for department projects,
instead of the generic requirements of Title 13, TAC, Part 2.
Subsections (n) and (o) allow THC to audit the department’s project
files for projects carried out under this MOU, and to require an annual meeting
of appropriate staff of both agencies.
Subsection (p) sets forth the procedures for dispute resolution. The MOU
requires the department to submit numerous documents to THC. Depending on
the particular document, THC review, comment, concurrence, or approval may
be required. This subsection specifies the procedures that will be used to
resolve disagreements or disputes. To summarize these provisions, there is
an opportunity for informal consultation on a disputed matter, followed by
formal federal dispute resolution procedures or an appeal under state law
as provided in 13 TAC Chapter 27.
COMMENTS
No comments were received on the proposed amendments, repeal, and new section.
43 TAC §2.21, §2.24
STATUTORY AUTHORITY
The amendments and new section are adopted under Transportation Code, §201.101,
which provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the department, and more specifically,
Transportation Code, §201.607, which requires that the department adopt
memoranda of understanding with each agency that has responsibility for the
protection of the natural environment, the preservation of the natural environment,
or for the preservation of historic or archeological resources, and that these
memoranda and all revisions be adopted as rules.
CROSS REFERENCE TO STATUTE: Transportation Code, §201.607.
§2.24.Memorandum of Understanding with the Texas Historical Commission.
(a)
Purpose.
(1)
It is the policy of the Texas Department of Transportation
(TxDOT) to:
(A)
identify the environmental impacts of TxDOT transportation
projects, to coordinate these projects with applicable state and federal agencies,
and reflect these investigations and coordination in the environmental documentation
for each project;
(B)
base project decisions on a balanced consideration of the
need for a safe, efficient, economical, and environmentally sound transportation
system;
(C)
receive input from the public through the public involvement
process;
(D)
utilize a systematic interdisciplinary approach as an essential
part of the development process for transportation projects; and
(E)
strive for environmentally sound transportation activities
through appropriate avoidance, treatment or mitigation, where feasible and
prudent, in coordination with appropriate resource agencies.
(2)
In order to pursue this policy, the Texas Department of
Transportation and the Texas Historical Commission (THC) have agreed to adopt
this new Memorandum of Understanding (MOU), which will supersede the MOU which
became effective on December 13, 1998.
(3)
This MOU is entered into by THC and TxDOT in accordance
with Government Code, §442.005 and §442.007, Natural Resources Code, §191.0525(f),
and Transportation Code, §201.607, to adequately provide for coordination
of projects with THC. It is the intent of this MOU to provide a formal mechanism
for THC review of TxDOT projects that have the potential to adversely affect
cultural resources in order to assist TxDOT in making environmentally sound
decisions, and to develop with TxDOT a system by which information developed
by TxDOT and THC may be exchanged to their mutual benefit. This MOU also provides
for an efficient and streamlined review of TxDOT projects in keeping with
state and national initiatives for environmental streamlining.
(b)
Authority.
(1)
Transportation Code, §201.607, directs TxDOT to adopt
MOUs with appropriate environmental resource agencies, including THC. The
rules for coordination of state-assisted transportation projects found in
Subchapter C of this chapter (relating to Environmental Review and Public
Involvement for Transportation Projects), underline the need for and importance
of comprehensive environmental coordination for transportation projects.
(2)
Transportation Code, §201.607(a)(5) also authorizes
and contemplates other agreements necessary for the effective coordination
of the review of the historic or archeological effect of highway projects.
(3)
Provisions of this MOU may in part be implemented through
a Programmatic Agreement (PA) among the Federal Highway Administration (FHWA),
the Texas State Historic Preservation Officer (TSHPO), the Advisory Council
on Historic Preservation (Council), and TxDOT. TxDOT and THC will seek to
revise the existing PA, executed in 1995, to reflect the streamlined procedures
contained in this MOU.
(c)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Antiquities Code of Texas (ACT)--The state statute (Natural
Resources Code, Chapter 191) that designates the Texas Historical Commission
as the legal custodian of all cultural resources, historic or prehistoric,
within the public domain of the state, and as the body that issues antiquities
permits, in accordance with Title 13, Part 2, TAC, concerning the Texas Historical
Commission.
(2)
Antiquities permit--A permit issued by the Texas Historical
Commission in order to regulate the taking, alteration, damage, destruction,
salvage, archeological survey, testing, excavation and study of state archeological
landmarks including prehistoric and historic archeological sites, and the
preservation, protection, stabilization, conservation, rehabilitation, restoration,
reconstruction, or demolition of historic structures and buildings designated
as a State Archeological Landmark or listed in the National Register of Historic
Places.
(3)
Area of potential effects--The geographic area or areas
within which an undertaking may cause changes in the character or use of historic
properties, as that term is defined in 36 CFR Part 800, if any such properties
exist.
(A)
The area of potential effects for archeological properties
on federal undertakings will be confined to the limits of the proposed project
right of way (including permanent and temporary easements), utility relocations,
and project-specific locations designated by TxDOT.
(B)
Unless TxDOT and THC in consultation determine a need for
a wider area of potential effects, the area of potential effects for other
properties on federal undertakings will be:
(i)
300 feet beyond the proposed right of way for projects
constructed on new locations;
(ii)
150 feet beyond the proposed right of way for projects
constructed in existing transportation corridors, including abandoned railroad
lines.
(C)
The area of potential effects for all non-federal undertakings
will be confined to the limits of the proposed project right of way (including
permanent and temporary easements), utility relocations, and project-specific
locations specifically designated by TxDOT.
(4)
Cultural resources--A general term referring to buildings,
structures, objects, sites, and districts more than 50 years of age with the
potential to have significance in local, state, or national history.
(5)
Eligibility--A property’s eligibility for the National
Register of Historic Places as set forth in 36 CFR Part 60 and 36 CFR Part
800, or for designation as a State Archeological Landmark, as set forth in
13 TAC Chapter 26.
(6)
Environmental document--a decision-making document that
incorporates environmental studies, coordination, documentation, consultation
efforts, and engineering elements, and may include categorical exclusion documentation,
environmental assessment, and environmental impact statements.
(7)
Historic property--Any prehistoric or historic district,
site, building, structure, or object which is included or eligible for inclusion
in the National Register of Historic Places, as defined in 36 CFR Part 800
and 36 CFR Part 60, or meets the requirements for designation as a State Archeological
Landmark as set forth in 13 TAC Chapter 26.
(8)
Historic-age property--Any site, building, structure, or
object that will be 50 years old or older in age at the time of the award
of the construction contract.
(9)
Impact evaluation--Field inspection by a qualified archeologist
to determine the extent to which physical conditions affect the eligibility
of known or unknown archeological deposits within the area of potential effects
of the proposed project.
(10)
National Register--The National Register of Historic Places
(NRHP), which is the nation's inventory of historic places maintained by the
U.S. Secretary of the Interior. (Historic properties included in or eligible
for inclusion must meet National Register criteria for evaluation, as defined
in 36 CFR Part 60.)
(11)
Project specific location--The location of specific material
sources (base material, borrow, sand pits, etc.) and other sites used by a
construction contractor for a specific project.
(12)
Quarterly report--A report that TxDOT submits to THC 20
days after the end of each quarter listing all projects for which TxDOT has
documented that no historic properties are present in the project’s
area of potential effect, and those where the projects will have no adverse
effects on historic properties as determined by background research and/or
field investigation, and project review, as appropriate, that is used to fulfill
TxDOT’s reporting requirements under this MOU.
(13)
State Archeological Landmark (SAL)--Archeological and
historic-age properties that are designated or eligible for designation as
landmarks as defined in Subchapter D of the Antiquities Code of Texas (ACT)
and identified in accordance with 13 TAC Chapter 26.
(14)
State Historic Bridge Inventory (SHBI)--An ongoing evaluation
effort to determine the eligibility of historic-age bridges in Texas.
(d)
Responsibilities.
(1)
Texas Department of Transportation. The responsibilities
of TxDOT pertain primarily to its functions as a transportation agency, and
include:
(A)
planning and designing safe, efficient, effective, and
environmentally sensitive transportation facilities while avoiding, minimizing,
or compensating for impacts to cultural resources to the fullest extent practicable;
(B)
the timely and efficient construction of transportation
facilities, in a manner consistent with approved plans, agreements and commitments
that TxDOT has executed regarding the protection of historic properties;
(C)
ongoing maintenance to provide safe, efficient, and environmentally
sound transportation facilities for the traveling public;
(D)
coordinating projects with THC through TxDOT’s Environmental
Affairs Division or its successor as established by TxDOT administration;
and
(E)
provide funding to THC to enable THC to implement measures
to facilitate early coordination, streamlining and expedited review of TxDOT's
transportation projects.
(2)
Texas Historical Commission. The responsibilities of THC
relate primarily to its functions as a cultural resource agency, and include:
(A)
serving as the State Historic Preservation Office in Texas
with responsibility under 36 CFR Part 800--the regulations implementing §106
of the National Historic Preservation Act (16 U.S.C. 470f);
(B)
reviewing federally assisted, licensed, or permitted undertakings
with the potential to affect properties included in or eligible for inclusion
in the National Register of Historic Places;
(C)
providing assistance to agencies in their efforts to comply
with the §106 process;
(D)
regulating the identification, disposition and management
of State Archeological Landmarks which are affected by non-federal undertakings,
as described in the Antiquities Code of Texas and 13 TAC Chapter 26;
(E)
issuing permits for the taking, excavation, restoration,
rehabilitation or study of State Archeological Landmarks as provided in ACT, §191.054
and §191.091-191.098; and
(F)
applying TxDOT's funding solely to the review of TxDOT's
projects in a manner that most efficiently streamlines THC's effective review
and early coordination.
(e)
Early project planning for cultural resources.
(1)
TxDOT and THC agree that routine roadway maintenance projects,
by their nature and definition, do not require review by THC under 36 CFR
Part 800 or 13 TAC Chapter 26. Such projects include activities (such as vegetation
control, traffic control, and routine painting and striping) that do not have
the potential to affect State Archeological Landmarks or properties listed
or eligible for listing on the National Register. TxDOT and THC agree that
the following activities do not require review:
(A)
installation, repair, or replacement of fencing, signage,
traffic signals, railroad warning devices, safety end treatments, cameras
and intelligent highway system equipment;
(B)
earthmoving projects involving less than 100 cubic yards
of excavation below the original grade;
(C)
routine structural maintenance and repair of non-historic
bridges, highways, railroad crossings, picnic areas, and rest areas;
(D)
in-kind repair, replacement of non-historic lighting, signals,
curbs and gutters, and sidewalks;
(E)
crack seal, overlay, milling, grooving, resurfacing, and
restriping;
(F)
replacement, upgrade, and repair of safety barriers, ditches,
storm drains, and culverts constructed after the depression-era period (i.e.
after 1939) except in association with historic bridges;
(G)
intersection improvements that require no additional right
of way;
(H)
placement of riprap to prevent erosion of waterway banks
and bridge piers provided no ground disturbance is required;
(I)
all maintenance work between a highway and an adjacent
frontage road;
(J)
installation of noise barriers or alterations to existing
publicly owned buildings less than 50 years old, to provide for noise reduction
except in potential or listed National Register districts;
(K)
driveway and street connections;
(L)
all work within interchanges and within medians of divided
highways except where graves are present;
(M)
all work between the flowlines of the ditches and channels
and above the original line and grade;
(N)
ditch and channel maintenance provided removal of fill
is above the original line and grade;
(O)
repairs needed as a result of an event, natural or man-made,
that causes damage to a designated state highway, resulting in an imminent
threat to life or property or that substantially disrupts or may disrupt the
orderly flow of traffic and commerce; or
(P)
other kinds of undertakings jointly agreed to in writing
by THC and TxDOT.
(2)
TxDOT is committed to performing early identification efforts
for cultural resources located within the area of potential effects of proposed
transportation projects and initiating THC coordination during the early planning
stages of these projects, when the widest range of alternatives is open for
consideration.
(3)
TxDOT is committed to implementing, in appropriate cases
and as a part of early project planning and coordination, alternative methods,
techniques, and other strategies that are reasonable and feasible and that
will enhance efficiency in complying with cultural resource laws. These include,
but are not limited to, programmatic approaches to coordination of selected
types of cultural resources, evaluation of existing conditions affecting the
integrity of cultural resources, geoarcheological research to assist in early
planning and to reduce archeological liabilities, development of significance
eligibility standards with THC, and development and implementation of alternative
mitigation strategies. TxDOT may seek to utilize alternative strategies for
procedures set forth in this MOU. Upon the written concurrence of THC, TxDOT
may implement the alternative strategy in lieu of the procedures specified
in this MOU.
(4)
TxDOT is also committed to providing the public and interested
parties with opportunities to provide input and express their views concerning
potential project impacts to historic properties.
(A)
TxDOT will ensure that cultural resource issues are incorporated
into its regular public participation programs carried out under the National
Environmental Policy Act (42 USC 4321-4347 et seq.), and §2.42 and §2.43
of this chapter (relating to Highway Construction Projects-Federal Aid, and
Highway Construction Projects-State Funds), as far as practicable.
(B)
TxDOT will also ensure that federally recognized Indian
tribes (as specified in 36 CFR 800) are provided early project information
and information on Native American sites that will be affected by TxDOT projects
in order to provide comments.
(C)
If concerns related to historic and archeological issues
arise after the NEPA public involvement process is complete, or if new information
about historic or archeological issues is found, TxDOT and THC shall independently
re-evaluate their findings.
(5)
Cultural resource investigations by consultants.
(A)
TxDOT has the right to perform cultural resource investigations
using staff or consultants who meet the professional standards of 13 TAC Chapter
26, and as required by 36 CFR Part 800.
(B)
Cultural resource surveys, investigations, permit applications,
and other work performed by consultants shall be coordinated with THC through
TxDOT's Environmental Affairs Division or its successor as established by
TxDOT administration.
(f)
Procedures for coordination regarding archeological resources.
Provided the work is completed in accordance with the provisions of this MOU,
survey and eligibility testing of archeological resources performed by the
archeological staff of TxDOT's Environmental Affairs Division is authorized
under this MOU and will not be considered an operation that might require
an antiquities permit under ACT, §191.054 or §191.131. All other
archeological investigations shall require an antiquities permit.
(1)
Identification.
(A)
TxDOT will undertake sufficient background research to
determine which proposed projects require archeological surveys. Background
research may include a search of records and files at THC and/or the Texas
Archeological Research Laboratory (TARL), gathering information on soils,
a geomorphic history of the projects, Texas Historic Sites Atlas, and impact
evaluations.
(B)
Based on the results of background research, TxDOT will
identify projects requiring archeological investigation for archeological
resources.
(C)
TxDOT will prepare a list of projects which do not require
individual coordination for archeological sites, and will provide THC with
a list of such projects, including those where impact evaluations were performed,
on a quarterly basis or upon request by THC.
(D)
Eligibility determinations that TxDOT performs under this
MOU may not require field investigations if sufficient background information
exists to demonstrate that the portion of the site to be affected does not
have potential research value.
(E)
Eligibility determinations that TxDOT performs under this
MOU may be based on impact evaluation if it can be demonstrated that the portion
of the site to be affected does not have sufficient integrity to be eligible.
(2)
Archeological surveys.
(A)
All projects, and portions of projects, recommended for
survey by TxDOT during background research will be subjected to archeological
survey using the methods in conformance with 36 CFR Part 800 and THC's Archeological
Survey Standards, or with other appropriate methods. TxDOT reserves the right
to depart from published survey standards in cases where it deems appropriate.
THC reserves the right to review non-standard procedures for their adequacy.
(B)
An archeological survey will be conducted by a TxDOT professional
archeological staff member or other archeologist who meets the state and federal
standards. Surveys may be limited to an evaluation of existing impacts or
stratigraphic integrity when these are sufficient to determine that any sites
present are unlikely to be eligible.
(C)
When the archeological survey has been completed, TxDOT
will submit the results of the survey to THC:
(i)
as part of a quarterly list of investigations where no
sites were found, where sites were found but were not recommended for further
work, or upon request by THC;
(ii)
as an individual report when sites are present and recommended
for further work; or
(iii)
as an individual report when no further work is recommended,
but THC comment is a desirable element of TxDOT’s NEPA compliance.
(D)
All TxDOT survey reports will include:
(i)
details of the results of the survey, including project
description, anticipated project impact, and existing disturbance in the project
area;
(ii)
environmental data on topography, soils, land use, survey
methodology, survey results, and recommendations;
(iii)
the project location plotted on 7.5' Series USGS quadrangle
maps;
(iv)
descriptions of any sites found;
(v)
submission of electronic and paper copies of archeological
site survey forms to TARL; and
(vi)
recommendations regarding whether the site(s) merit archeological
testing or archeological monitoring.
(E)
THC will respond within 20 days of receipt of the TxDOT
request for review of any survey results and recommendations. The response
will include:
(i)
a statement of concurrence or nonconcurrence with the results
of the survey and its recommendations; and
(ii)
any other comments relevant to the archeological resources
which could be affected by the project.
(F)
TxDOT will summarize the results of the archeological survey
and recommendations in the environmental document for the project, to the
extent completed to date.
(3)
Archeological eligibility testing phase.
(A)
All sites and portions of sites recommended for eligibility
testing by THC will be subject to archeological testing, using the methods
agreed upon in writing by TxDOT and THC.
(B)
THC may send a representative to observe any or all of
the testing procedures.
(C)
At the completion of testing, TxDOT will prepare a formal
report of the results of testing.
(i)
For sites affected by federal undertakings, the report
will include recommendations regarding eligibility for the NRHP, as described
in 36 CFR Part 60 and 36 CFR Part 800.
(ii)
For sites affected by non-federal undertakings, the report
will include recommendations regarding the eligibility of the site for designation
as a State Archeological Landmark, in accordance with ACT, §191.091 and §191.092,
and 13 TAC Chapter 26.
(iii)
TxDOT may submit interim reports on testing to expedite
project review, provided such reports contain sufficient information on which
to base recommendations of eligibility and, if relevant, additional work.
Interim reports shall not be substituted for final reports.
(D)
TxDOT will send the testing report to THC with a request
for review.
(E)
THC will respond to the report within 20 days of receipt
of TxDOT's request for review and in accordance with 36 CFR Part 800. The
response will include:
(i)
a statement of concurrence or nonconcurrence with the results
of the archeological testing and recommendations contained in the TxDOT request
for review; and
(ii)
a determination of the site's eligibility for listing
in the National Register of Historic Places, or for designation as a State
Archeological Landmark, and
(iii)
if THC does not respond within 20 days, TxDOT may assume
that THC concurs with TxDOT’s determination regarding a site’s
eligibility and may proceed with the project in accordance with the procedures
required in this MOU.
(F)
When appropriate, TxDOT will work with THC to develop public
educational outreach projects associated with significant test level investigations.
(4)
Archeological excavation/data recovery.
(A)
All sites and portions of sites determined to be eligible
for the NRHP (for federal undertakings) or eligible for designation as a State
Archeological Landmark (for non-federal undertakings) based on consultation
with THC, will be subjected to data recovery in conformance with a data recovery
plan that has the concurrence of THC when avoidance is not feasible and provided
that they are not eligible for preservation in place.
(B)
TxDOT, in consultation with THC, will develop a data recovery
plan for each eligible site on a case-by-case basis, in accordance with 36
CFR Part 800 for federal undertakings and ACT for non-federal undertakings.
Final data recovery plans must be approved by THC prior to their implementation.
(C)
Results of data recovery will be published as required
by 36 CFR Part 800 and/or ACT. To expedite transportation project planning,
design, and construction, interim reports on data recovery may be used for
consultation to determine whether field work commitments have been fulfilled.
Interim reports shall not be substituted for final reports.
(D)
All data recovery will be performed under an antiquities
permit.
(E)
When appropriate, TxDOT and THC may agree to substitute
alternative mitigation in lieu of data recovery.
(F)
When appropriate, TxDOT will work with THC to develop public
educational outreach projects associated with significant data recovery investigations.
(G)
THC will respond to the report within 20 days of receipt
of TxDOT’s request for review and will comment on whether field work
commitments have been fulfilled. TxDOT shall take THC comments into account
prior to proceeding with the project. If THC does not respond within 20 days,
TxDOT may assume that THC concurs that the field work commitments have been
fulfilled.
(5)
Archeological sites found after award of contract.
(A)
When previously unknown archeological remains are encountered
after award of contract, TxDOT will immediately suspend construction or any
other activities that would affect the site.
(B)
TxDOT will inform THC, and, if appropriate, federally recognized
tribes, of discovery of previously unknown archeological remains and invite
them to accompany TxDOT staff (or consultants) to the location within 48 hours
of the discovery.
(C)
TxDOT will evaluate the need, if any, for further investigations
upon visiting the location of the discovery.
(D)
If TxDOT determines that the discovery is an unrecorded
archeological site, then TxDOT shall complete a State of Texas Archeological
Site Data Form.
(E)
If TxDOT determines that the site does not warrant further
investigations, TxDOT will write to THC and, if appropriate, federally recognized
tribes outlining its reasons and requesting concurrence within one business
day of the visit to the discovery location. THC and, if appropriate, federally
recognized tribes, will have two business days to respond. No response will
be deemed to represent concurrence and construction will resume.
(F)
If TxDOT determines that the site warrants further investigation,
a scope of work for investigations will be developed within 24 hours of the
visit to the site. The scope of work will be submitted to THC and appropriate
federally recognized tribes who will have one business day to review and comment
on the scope of work. No response will be deemed to represent concurrence
and the scope shall be implemented. If comments are received, TxDOT and, if
appropriate, FHWA shall take into account those comments and carry out the
final scope of work. Upon completion of the approved work, construction may
proceed as planned. A report of the investigations will be completed within
the timeframe established by the scope of work and copies provided to all
consulting parties.
(G)
The procedures in this subsection shall be used to satisfy
the permitting requirements of 13 TAC Chapter 26 for emergency permitting
under 13 TAC §26.20(13) when conditions of natural or man-made disasters
necessitate immediate action.
(6)
Artifact recovery and curation.
(A)
Artifact recovery.
(i)
The type and quantity of artifacts to be recovered during
testing and data recovery will be detailed in the scope of work and will be
selected to address the research questions.
(ii)
Artifacts or analysis samples (such as soil samples) that
are recovered from survey, testing, or data recovery investigations by TxDOT
or their contracted agents that address the research questions, must be cleaned,
labeled, and processed in preparation for long-term curation unless the artifacts
or samples are approved by THC for discard under 13 TAC Chapter 26.
(iii)
To ensure proper care and curation, recovery methods
must conform to 36 CFR Part 800, and 13 TAC Chapter 26.
(B)
Artifact curation.
(i)
TxDOT or its permitted contractor may temporarily house
artifacts and samples during laboratory analysis and research, but upon completion
of the analysis, artifacts and accompanying documentation must be transferred
to a permanent curatorial facility in accordance with the terms of the antiquities
permit.
(ii)
Artifacts and samples will be placed at an appropriate
artifact curatorial repository which fulfills 36 CFR Part 79, or the ACT,
as approved by THC. When appropriate, TxDOT will consult with THC to identify
for disposal collections or portions of collections that do not have identifiable
value for future research or public interpretation. Final approval regarding
the disposition of collections will be made by THC.
(iii)
TxDOT is responsible for the curatorial preparation of
all artifacts to be submitted for curation so that they are acceptable to
the receiving curatorial repository and fulfill 36 CFR Part 79 and 13 TAC
Chapter 26, as approved by THC.
(g)
Early project development procedures for coordination regarding
non-archeological historic properties. For purposes of this subsection and
subsections (h), (i) and (j) of this section, the term historic properties
will refer only to non-archeological historic properties.
(1)
TxDOT and THC agree (for federal and non-federal projects)
that certain types of undertakings do not require individual coordination.
These undertakings are projects where no historic properties are present,
or where the undertakings will have a minimal potential to affect historic
properties if such are present in the area of potential effects. TxDOT will
document these undertakings and include them in a quarterly report to THC
unless they are the subject of individual coordination with THC. Examples
of such undertakings include:
(A)
Construction of bicycle and pedestrian lanes, paths, and
facilities if not located in a listed or eligible National Register historic
district;
(B)
road widening within existing or minimal new right of way
if not located in a listed or eligible National Register historic district;
(C)
correction of roadway geometric and intersections within
existing or minimal new right of way;
(D)
bridge deck rehabilitation and stabilization; and
(E)
other classes of undertakings jointly agreed to in writing
by THC and TxDOT.
(2)
Early in the project development process, TxDOT will determine
whether federally assisted, licensed, or permitted transportation projects
(federal projects) constitute undertakings with the potential to affect historic
properties. In consultation with THC, it has been determined that individual
coordination with THC is not necessary for projects where background research
indicates that no historic properties are present or where they are present
but the project will not have the potential to affect them. TxDOT will maintain
documentation of efforts taken to reach this conclusion, and will include
these projects in the quarterly report, or provide documentation upon request
by THC.
(3)
Early in the project development process, TxDOT will review
its non-federal transportation improvements occurring on any lands of the
State of Texas (non-federal projects) to determine whether they have the potential
to affect historic properties under the terms of the ACT, and 13 TAC Chapter
26. Effects include the removal, alteration, or renovation of one or more
contributing elements to a historic property. TxDOT and THC agree that individual
coordination with THC is not necessary when no historic properties are present
or when the project does not have the potential to adversely affect historic
properties, provided TxDOT has complied with the provisions of this MOU. TxDOT
will maintain documentation of efforts taken to reach this conclusion, and
will include these projects in the quarterly report, or provide documentation
upon request by THC.
(4)
If TxDOT determines that a project has the potential to
affect a historic property, TxDOT will then individually coordinate the project
with THC in accordance with the provisions provided in this MOU.
(h)
Identification and evaluation of historic properties.
(1)
For non-federal and federal projects requiring individual
THC coordination, TxDOT will identify historic properties within the project’s
area of potential effects. TxDOT will conduct a search of available records,
including listings of the Texas Historic Sites Atlas, Recorded Texas Historic
Landmarks, State Archeological Landmarks, and properties listed in the National
Register. THC will render all reasonable assistance to TxDOT in performing
record searches on historic properties.
(2)
TxDOT will conduct field surveys for all projects that
may have historic-age properties within their area of potential effects. These
surveys will be conducted in order to determine if historic properties are
present.
(3)
If the identification efforts reveal historic-age properties,
TxDOT will evaluate the eligibility of each property to determine if the property:
(A)
qualifies as a SAL as defined by ACT, §191.092(f),
for non-federal projects; or
(B)
is eligible for inclusion or listed in the National Register,
for federal projects.
(4)
If a non-federal or federal project has the potential to
affect a historic-age bridge-class structure, the following procedures apply
unless the structure is of a categorically excluded type as defined by SHBI
criteria. Categorically excluded structures are generally not eligible bridges
that have been widened, non-depression era simple span concrete box culverts
and timber stringer bridges. There are exceptions to these exclusions and
other categorically excluded structures may be added by written agreement
between TxDOT and THC in the future.
(A)
If a non-federal or federal project has the potential to
affect a historic-age bridge-class structure that has not been included in
the SHBI, as formally accepted by THC, TxDOT will assess the eligibility of
the structure in consultation with THC.
(B)
If a historic-age bridge-class structure has been determined
not eligible, either under the SHBI or in individual consultation with THC,
TxDOT will coordinate with appropriate local entities to determine if the
structure has local interest or significance.
(i)
If no local interest or significance is identified, TxDOT
will add the project to the quarterly report.
(ii)
If TxDOT or THC identifies local interest or significance
in a structure, TxDOT will reassess the eligibility with THC. If TxDOT and
THC concur that the bridge-class structure is still not eligible, TxDOT will
document the project in the quarterly report.
(C)
If a historic-age bridge-class structure has been determined
eligible, either under the SHBI or in individual consultation with THC, TxDOT
shall follow the procedures outlined in subsection (i) of this section, regarding
assessing and mitigating effects on historic properties.
(D)
If TxDOT has reason to believe that a bridge-class structure
is no longer eligible, TxDOT will consult with THC to reassess the eligibility.
(E)
If TxDOT and THC concur that the bridge-class structure
is no longer eligible, TxDOT will document the project in the quarterly report.
(i)
Assessing and mitigating effects on historic properties.
TxDOT will assess the effects of projects on properties that qualify as SALs
for non-federal projects and on properties determined to be listed or eligible
for inclusion in the National Register for federal projects. TxDOT will then
consult with THC using the following procedures.
(1)
For a non-federal project, TxDOT will consult with THC
to determine if a historic structures permit is required for any proposed
removals, alterations, or renovations to state archeological landmarks or
to properties for which THC will initiate an SAL nomination in accordance
with 13 TAC §26.12 and ACT, §191.098.
(2)
For a federal project, TxDOT will apply the criteria of
effect and in the case of a determination of adverse effect will consult with
THC in accordance with the provisions set forth in 36 CFR Part 800.
(3)
For a project involving a bridge-class structure that TxDOT
and THC concur is eligible, TxDOT shall evaluate the preservation options
in the following order of preference: full vehicular use; reduced level of
vehicular use, non-vehicular use at original site; relocation for vehicular
use; relocation for non-vehicular use; or demolition. TxDOT will document
the evaluation of each preservation option including identification of the
preferred option with supportive reasoning, and will submit the documentation
to THC.
(A)
When an eligible bridge-class structure will be retained
for non-vehicular use at the original site or relocated, TxDOT will provide
THC with an agreement signed by the bridge-class structure owner that includes
language that ensures maintenance of the bridge-class structure, and provides
THC the opportunity to review and concur that current and future proposed
work on the bridge-class structure, beyond normal maintenance, complies with
the Secretary of the Interior's Standards for Rehabilitation.
(B)
Upon receipt of complete documentation, THC shall have
20 days to review and comment on the project. TxDOT shall take THC comments
into account in making decisions on the project involving the bridge-class
structure.
(4)
TxDOT will, to the maximum extent practicable, provide
an early opportunity for the public and interested parties to receive information
and to express their views on projects when a historic property may be negatively
affected by a transportation project.
(5)
TxDOT will also consult with THC to seek ways to avoid,
minimize, or mitigate any negative effects on historic properties caused by
federal and non-federal projects in accordance with the following procedures.
(A)
Non-federal projects. TxDOT shall take THC comments into
account when projects will have an adverse effect on historic properties.
(B)
Federal projects. TxDOT will follow the consultation procedures
set out in 36 CFR Part 800.
(j)
Project documentation by TxDOT.
(1)
THC may audit TxDOT project files for specific undertakings
submitted in the quarterly report. Projects involving non-archeological properties
that are submitted individually to THC or included in the quarterly report,
will be documented by TxDOT and will include:
(A)
a project description and scope, including project drawings,
photographs, reports and other information where needed to clearly describe
the proposed project;
(B)
a map showing the location of the project and all historic-age
properties within the APE of the project;
(C)
a statement of the efforts and methodology used to identify
historic-age properties in the project area;
(D)
documentation on each identified property, including at
least one photograph of the property, the address, if known, an architectural
description, date of construction (estimated or known), an integrity assessment,
and any known local, state, or national historical designations;
(E)
the results of any coordination with interested parties
concerning the eligibility of identified historic-age properties;
(F)
the results of TxDOT's determination of eligibility for
each identified historic-age property; and
(G)
TxDOT's assessment of potential project effects on historic
properties, including evaluations, reports and other documentation relevant
to the determination of effect.
(2)
If the project is submitted to THC for review of non-archeological
properties, THC will respond within 20 days of receipt of complete documentation
and TxDOT's request for review as follows.
(A)
For a non-federal project, THC’s response will indicate
whether the project will require a historic structures permit for an SAL,
whether THC intends to initiate SAL nomination of a property not previously
designated as an SAL, or if THC has knowledge that another party intends to
initiate SAL nomination in accordance with 13 TAC §26.11, §26.12
and §26.22, and ACT, §191.098. If THC does not respond within 20
days, TxDOT will assume that THC concurs with TxDOT's determination regarding
historic-age property eligibility or project effects, and TxDOT will proceed
with the project in accordance with the procedures required in this MOU.
(B)
For a federal project, all coordination with THC will follow
the provisions of 36 CFR Part 800 and the PA between TxDOT, FHWA, and THC.
(3)
Projects involving archeological properties that are submitted
individually to THC or included in the quarterly report will be documented
by TxDOT in the manner described in this paragraph. THC may audit TxDOT project
files for specific undertakings submitted in the quarterly report. For archeology,
project documentation will consist of a statement for "no survey" or a report
of an archeological impact evaluation or an archeological survey report. Each
project at a minimum will include:
(A)
a description of the project;
(B)
a project location map;
(C)
information about soils and geology in the project location,
as appropriate;
(D)
information on previously recorded archeological sites
in the project location;
(E)
level of effort for identification of archeological sites;
and
(F)
results and recommendations.
(k)
Environmental document and public involvement. TxDOT will
summarize information on its efforts to identify archeological sites and historic
properties, to determine the effects of projects on archeological sites and
historic properties, and to mitigate any negative effect on these sites or
properties in the environmental document, if one is prepared, and will include
this information in public involvement activities to the maximum extent practicable.
(l)
Denial of access. In cases where access to private land
for conducting archeological survey is denied prior to the approval of the
environmental document, TxDOT will make a commitment to complete testing,
evaluation of site eligibility, or data recovery prior to any construction
related impacts.
(m)
MOU to govern TxDOT procedures. TxDOT satisfies applicable
THC requirements if it utilizes the procedures of this MOU in lieu of other
THC procedures. In cases where TxDOT is utilizing this MOU in lieu of other
THC procedures, TxDOT must follow the requirements of this MOU.
(n)
THC audit. THC may audit TxDOT project files for specific
undertakings carried out under this MOU.
(o)
Annual meeting. TxDOT and THC staff will meet annually
to discuss topics of mutual interest.
(p)
Dispute resolution.
(1)
If THC and TxDOT cannot reach agreement on any plans or
actions carried out pursuant to this MOU, THC and TxDOT will consult to resolve
the objection.
(2)
If THC and TxDOT cannot reach a compromise solution or
otherwise resolve the objection through consultation, either TxDOT or THC
may choose to invoke the dispute resolution provisions which are set forth
in paragraph (3) of this subsection.
(3)
When these dispute resolution provisions are invoked, if
TxDOT and THC cannot resolve their disagreement, the two agencies will resolve
their dispute in accordance with the procedures established under state and
federal rules.
(A)
Federal undertakings will follow the dispute resolution
procedures as stipulated in 36 CFR Part 800.
(B)
Non-federal projects will follow the appeal procedures
provided in 13 TAC Chapter 27.
(q)
Review of MOU. This memorandum shall be reviewed and updated
as provided by law or by agreement between the parties.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 30, 2004.
TRD-200402906
Richard D. Monroe
General Counsel
Texas Department of Transportation
Effective date: May 20, 2004
Proposal publication date: February 13, 2004
For further information, please call: (512) 463-8630
43 TAC §2.24
STATUTORY AUTHORITY
The repeal is adopted under Transportation Code, §201.101, which provides
the Texas Transportation Commission with the authority to establish rules
for the conduct of the work of the department, and more specifically, Transportation
Code, §201.607, which requires that the department adopt memoranda of
understanding with each agency that has responsibility for the protection
of the natural environment, the preservation of the natural environment, or
for the preservation of historic or archeological resources, and that these
memoranda and all revisions be adopted as rules.
CROSS REFERENCE TO STATUTE: Transportation Code, §201.607.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on April 30, 2004.
TRD-200402907
Richard D. Monroe
General Counsel
Texas Department of Transportation
Effective date: May 20, 2004
Proposal publication date: February 13, 2004
For further information, please call: (512) 463-8630
Subchapter F. CONTRACTS FOR SCIENTIFIC, REAL ESTATE APPRAISAL, RIGHT OF WAY ACQUISITION, AND LANDSCAPE ARCHITECTURAL SERVICES
43 TAC §9.87
The Texas Department of Transportation (department) adopts
amendments to §9.87, concerning selection of contracts for scientific,
real estate appraisal, right of way acquisition, and landscape architectural
services. The amendments to §9.87 are adopted without changes to the
proposed text as published in the February 13, 2004, issue of the
Texas Register
(29 TexReg 1321) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Transportation Code, Chapter 223, Subchapter D, provides for the procurement
of scientific services. Government Code, Chapter 2254, Subchapter A, authorizes
the procurement of real estate appraisal, right of way acquisition, and landscape
architectural services.
The amendments to §9.87 increase the maximum amount payable under
an indefinite delivery contract from $1 million to $2 million for scientific,
real estate appraisal, right of way acquisition, and landscape architectural
services in a single district and to a maximum of $5 million if the services
are to be provided in two or more districts.
This increase will allow the department to be more flexible. The current
cap of $1 million is not always enough to complete a minor and a major project.
The purpose of indefinite delivery contracts is to facilitate the implementation
of more than one project. To start with a new firm in the middle of a large-scale
project causes a loss of continuity. This is especially disruptive in excavation
work. More projects are expected with the increase in toll roads and design-build
projects in new locations. Because the scope of impact is so large with these
projects, and the timelines are short, a $1 million contract does not allow
sufficient contract capacity. The department still has the option to advertise
contracts for smaller amounts.
COMMENTS
No comments were received on the proposed amendments.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the department, and more specifically,
Transportation Code, Chapter 223, Subchapter D, which provides for the
selection of technical experts, and Government Code, Chapter 2254, Subchapter
A, which provides for the selection of real estate appraisers and landscape
architects.
CROSS REFERENCE TO STATUTE: Transportation Code, Chapter 223, Subchapter
D and Government Code, Chapter 2254, Subchapter A.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 30, 2004.
TRD-200402908
Richard D. Monroe
General Counsel
Texas Department of Transportation
Effective date: May 20, 2004
Proposal publication date: February 13, 2004
For further information, please call: (512) 463-8630
Subchapter M. RAIL FACILITIES
43 TAC §§15.150, 15.151, 15.154, 15.155
The Texas Department of Transportation (department) adopts
amendments to §15.150 and §15.151 and new §15.154 and §15.155,
concerning the department’s acquisition, construction, maintenance,
and operation of rail facilities. Sections 15.150, 15.151, 15.154, and 15.155
are adopted without changes to the proposed text as published in the March
5, 2004, issue of the
Texas Register
(29 TexReg
2286) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS AND NEW SECTIONS
Transportation Code, Chapter 91, authorizes the department to acquire,
finance, construct, maintain, and operate a passenger or freight rail facility
or system, including the acquisition of abandoned rail facilities.
Transportation Code, §91.051, provides that unless otherwise provided
by Subchapter C of that chapter, a contract made by the department for the
construction, maintenance, or operation of a rail facility must be let by
a competitive bidding procedure in which the contract is awarded to the lowest
responsible bidder that complies with the department’s requirements.
Transportation Code, §91.102, authorizes the department to lease all
or part of a rail facility or system to a rail operator, and to contract with
a rail operator for the use or operation of all or part of a rail facility
or system. Transportation Code, §91.052, authorizes the department to
enter into an agreement with a public entity, including a political subdivision
of this state, to permit the entity, independently or jointly with the department,
to acquire, construct, maintain, or operate a rail facility or system.
Section 15.150 is amended to reflect that the proposed amendments and new
sections prescribe policies and procedures for the awarding of contracts for
the construction or maintenance of rail facilities, and the leasing of rail
facilities acquired or constructed by the department to public and private
entities.
Section 15.151 is amended to define executive director and to define those
public entities authorized to lease department rail facilities.
New §15.154 provides that the department will comply with the policies
and procedures prescribed for highway improvement contracts in the qualification
of bidders, issuance of proposals and receipt of bids, and award and execution
of a contract for the construction or maintenance of a rail facility. These
procedures have proven over time to be an effective means of awarding construction
and maintenance contracts. Moreover, the use of existing procedures is anticipated
to make the process more efficient, thereby resulting in cost savings to the
state.
In order to ensure the award of a contract for a particular project is
handled in the most efficient manner, §15.154 provides that the name
and address of the individual to whom bids shall be submitted will be provided
when a project is advertised. As authorized by law, §15.154 also provides
that the department will prescribe bidder responsibility requirements.
New §15.155 provides that the department may lease a rail facility
acquired or constructed by the department to a public entity. In accordance
with Transportation Code, §91.102, which requires the department to encourage
to the maximum extent practical the participation of private enterprise in
the operation of rail facilities, §15.155 requires a public entity to
contract for the operation of rail facilities leased by the public entity
under an agreement with the department. As required by law, the lease agreement
must provide for the department’s monitoring of the rail operator’s
service and performance.
In order to obtain the contractual relationship that is in the best interest
of the state, and to comply with the intent of Transportation Code, Chapter
91, §15.155 provides that the department will use a competitive process
to obtain private rail operators for rail facilities acquired or constructed
by the department. Section 15.155 also provides that in evaluating proposals
submitted by private rail operators, the department will consider, among other
criteria, the qualifications, experience, and capability of the proposer to
operate the rail facility. In order to ensure that rail service is provided
where needed and to provide for the development of transportation and commerce, §15.155
also provides that the department will consider, when evaluating proposals
submitted by private rail operators, a proposer’s plans for servicing
markets, improving service and adding additional markets, and maintaining
and improving rail facilities that are the subject of a lease agreement.
COMMENTS
On March 16, 2004, a public hearing was held to receive comments, views,
or testimony concerning the proposed amendments and new sections. No comments
were received.
STATUTORY AUTHORITY: The amendments and new sections are adopted
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 more specifically, Transportation Code, §91.003,
which authorizes the commission to adopt rules and the department to adopt
procedures and prescribe forms necessary to implement Chapter 91.
CROSS REFERENCE TO STATUTE: Transportation Code, Chapter 91.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 30, 2004.
TRD-200402909
Richard D. Monroe
General Counsel
Texas Department of Transportation
Effective date: May 20, 2004
Proposal publication date: March 5, 2004
For further information, please call: (512) 463-8630
Subchapter C. CONGESTION MITIGATION FACILITIES
Chapter 9.
CONTRACT MANAGEMENT
Chapter 15.
TRANSPORTATION PLANNING AND PROGRAMMING
Chapter 25.
TRAFFIC OPERATIONS