TITLE 43.TRANSPORTATION

Part 1. TEXAS DEPARTMENT OF TRANSPORTATION

Chapter 15. TRANSPORTATION PLANNING AND PROGRAMMING

Subchapter G. INTERNATIONAL BRIDGES

43 TAC §§15.70 - 15.76

The Texas Department of Transportation (department) proposes amendments to §§15.70 - 15.76, concerning international bridges.

EXPLANATION OF PROPOSED AMENDMENTS

The proposed amendments are necessary to implement the provisions of House Bill 1653, 78th Legislature, Regular Session, 2003; add, revise or eliminate certain terms and definitions; update statutory references; clarify existing information; modify requirements for public involvement; and allow for a comparison of competing applications.

The amendments to §15.70 incorporate a new provision enacted by House Bill 1653, which amended Transportation Code, §201.612, to permit an entity that is authorized to construct a new international bridge to enter into the approval process with the Texas Transportation Commission (commission) and the United States simultaneously. This represents a change from the existing process whereby an applicant obtained commission approval prior to requesting approval from the United States. Section 15.70 is further amended to update relevant statutory references.

Section 15.71 is amended to add the definitions of a competing bridge applicant and a district office, change the term "study sector" to "study area," and remove the definition of the Texas-Mexico Toll Bridge Study. The definition of competing bridge applicant is necessary to address the situation where two or more entities may be interested in constructing a new international bridge in the same area. The definition of district office is necessary to properly identify the specific location where applicants may obtain information. In this section, and throughout the amended rules, the term "study sector" is being replaced by the term "study area" in order to bring the application process up to current transportation planning analysis methods. Similarly, the definition of, and all references to, the Texas-Mexico Toll Bridge Study (Study) are being removed because it is no longer used as a basis for analyzing international bridges.

The first sentence of §15.72 is being removed as it is duplicative of a statement found in §15.70. The amendments to this section also include additional language to assist potential applicants with information-gathering related to the application process by directing them to their local department district office and the Transportation Planning and Programming Division.

The amendments to §15.73 set forth the process for addressing competing applications, clarify the requirements related to environmental documentation and public involvement, establish new guidelines for notification of public officials, and remove all references to the Study and sector as previously described.

Section 15.73(3)(A) is amended to clarify that an applicant must comply with the department's administrative rules pertaining to Environmental Policy and must obtain all environmental approvals required for the project. These changes are necessary to address confusion regarding the type of environmental documentation that is required for international bridge projects and to ensure consistency in the environmental review process.

Section 15.73(3)(B) has been amended to align the public involvement requirements related to international bridge applications with the public involvement requirements found in the department's administrative rules pertaining to Environmental Policy. This change is necessary to address confusion regarding the public involvement process and to ensure that members of the public, competing bridge applicants, and local officials have adequate notice of the hearing or meeting and an opportunity to comment on the proposed project or provide information as appropriate.

In addition, the amendments to paragraph (3)(B) of §15.73 set forth the information that an applicant must include in the notices of public hearings and meetings. Specifically, new paragraph (3)(B)(i) requires a statement that the applicant intends to submit an international bridge application to the commission. New paragraph (3)(B)(ii) requires a description of the project, including design and location information. New paragraph (3)(B)(iii) requires an instruction to competing bridge applicants that they have 60 days from the date the notice is published to provide the applicant with design, financial, and social and environmental information on the competing project.

New §15.73(3)(C) requires the applicant to send a copy of the notice described in §15.73(3)(B) to the county judges and city mayors within a certain geographic area.

New §15.73(4) is added to set forth the procedures to be followed when two or more applicants compete for approval of the construction of a new international bridge in the same study area. The amendments require an applicant to address the impact of competing projects and demonstrate how its submittal is superior to the other projects.

New §15.73(4)(A) describes the method by which the applicant will provide an analysis of its project compared against competing projects. The amendments require the applicant to analyze its project as a stand-alone project and then analyze its project against competing projects, demonstrating the superiority of one project by comparing the impacts on cost benefits, project viability, design, and social and environmental impacts.

Finally, new §15.73(4)(B) provides that the applicant will not be required to analyze a competing project if the competing bridge applicant does not provide data to the applicant necessary to perform the analysis on a competing project.

Appendix A, which describes the Texas Mexico border sectors identified in the Study, has been deleted since the Study is no longer used as a basis for analyzing international bridges.

The amendment to §15.74 removes a reference to an organizational position no longer used by the department.

The amendments to §15.75 eliminate references to obsolete state agency titles, and the section is revised to reflect current titles. In addition, new subsection (b)(4) of §15.75 is added to clarify that the commission, as part of its analysis of the application, will consider information pertaining to competing bridges, information timely submitted by competing bridge applicants as well as any other information provided by the department.

In §15.76, all references to the Study and sector are being removed as previously described. New subsection (e)(3) of §15.76 is added to reflect language in Transportation Code, §201.612, and provides that applications not approved by the commission must be withdrawn from consideration for approval by the United States.

FISCAL NOTE

James Bass, Chief Financial Officer, 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.

Mr. James Randall, Director, Transportation Planning and Programming, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.

PUBLIC BENEFIT

Mr. Randall 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 will be an improved and more effective international bridge application process. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §§15.70 - 15.76 may be submitted to James Randall, Director, Transportation Planning and Programming, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on July 10, 2006.

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, and more specifically, Transportation Code, §201.612, which authorizes the commission to adopt rules to administer that section.

CROSS REFERENCE TO STATUTE

Transportation Code, §201.612.

§15.70.Purpose.

Transportation Code, §201.612 provides [ Texas Civil Statutes, Article 6674v-8, provide ] that a political subdivision or private entity authorized to construct or finance the construction of a bridge over the Rio Grande must obtain approval from [ of ] the Texas Transportation Commission and the United States [ for the construction of the bridge before requesting approval from the federal government ] under Subchapter IV, Chapter 11, Title 33, United States Code , for the construction of the bridge. Transportation Code, §201.612 directs the department to allow an applicant to concurrently seek approval from the commission and the United States. This subchapter [ undesignated head ] prescribes the procedures and conditions by which a political subdivision or private entity may obtain the approval of the commission.

§15.71.Definitions.

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

(1) Applicant--A political subdivision or private entity authorized by law to construct or finance the construction of a bridge over the Rio Grande.

(2) Commission--The Texas Transportation Commission.

(3) Competing bridge applicant--An applicant whose project will compete for traffic and revenue and may have social, environmental, traffic congestion, and mobility impact on the study area.

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

(5) District office--One of the 25 geographical areas, managed by a district engineer, in which the department conducts its primary work activities.

(6) [ (4) ] Metropolitan planning organization--An organization designated in certain urbanized areas to carry out the transportation planning process as required by Title 23, United States Code, §134.

(7) [ (5) ] Project--The construction or the financing of the construction of a bridge over the Rio Grande.

(8) [ (6) ] Study area-- [ Study sector--The affected area of the proposed bridge as defined in the Texas Mexico Toll Bridge Study, Research Report Number 1976; ] The [ this ] area on [ will encompass ] both sides of the Texas-Mexico border affected by the proposed bridge.

[ (7) Texas-Mexico Toll Bridge Study--Research Report Number 1976, Center for Transportation Research, Bureau of Engineering Research, The University of Texas at Austin, April 1994; this study may be obtained by writing Center for Transportation Research Library, 3208 Red River, Suite 200, Austin, Texas 78705, and paying a reproduction fee.]

§15.72.New Bridge.

[ A political subdivision or private entity that desires to construct or finance the construction of a bridge over the Rio Grande must obtain approval from the commission for the construction of the bridge before requesting approval from the federal government under Subchapter IV, Chapter 11, Title 33, United States Code. ] To obtain commission [ such ] approval for a project , the political subdivision or private entity must submit an application and comply with all requirements and conditions imposed by this subchapter [ these sections ]. Prior to submitting an application to the department, applicants are encouraged to confer with their local department district office. The applicant should direct questions regarding the application and approval process, as well as questions relating to the respective roles and responsibilities of the applicant and the department, to the Transportation Planning and Programming Division (TPP).

§15.73.Preliminary Studies.

Prior to submitting an application to the department for the approval of a project, an applicant shall conduct a study of the design, financial feasibility, and [ the ] social and environmental impact of the project , including the effect of any competing applications .

(1) Design. The applicant shall provide a preliminary design geometric layout certified by a registered professional engineer to be in accordance with standards and criteria from appropriate design manuals applicable at the date of application. The layout must identify:

(A) horizontal and vertical alignments and cross-slope data of the proposed structure showing overall structure length, width, spans, span length, and type of construction, along with dimensions, where applicable, of:

(i) lane width;

(ii) curb width;

(iii) sidewalks;

(iv) shoulder width;

(v) calculated minimum vertical clearance over other roadways and waterways; and

(vi) toll booths and miscellaneous appurtenances;

(B) geometric termini locations along with inspection stations and queue lanes where applicable;

(C) the location and preliminary layout of approach roadways and intersections on both sides of the border with changes necessitated by the project to existing facilities on both sides of the border; and

(D) the location and layout of any other accommodation of buildings or appurtenances deemed necessary by the applicant and any law or regulation governing the operation and maintenance of port of entry operations.

(2) Financial feasibility study. An applicant shall conduct a feasibility study to determine the financial viability of the project. The study shall include the following information.

(A) A financial overview of the project, which shall include:

(i) summary cost estimates for the planning, design, construction, operation, and maintenance of the project; and

(ii) a statement of all financing requirements for the project and sources of all financing.

(B) A project construction schedule identifying the timing, amount, and source of all cash required to pay for all construction costs.

(C) An analysis of the expected financing period of the project, such period to be the greater of 10 years or the time taken to fully pay any and all liabilities incurred for the planning, design, construction, operation, and maintenance of the project plus the time taken to fully pay any and all liability refunding, renegotiations, conversions, and extensions.

(i) An applicant that issues or contemplates issuing any form of liability with a term longer than one year within three years of the date of application shall consider a portion of that liability as incurred for the planning, design, construction, operation, and maintenance of the project unless the applicant demonstrates otherwise to the satisfaction of the commission in the financial feasibility study. A liability not less than the cost of construction and not more than the costs of planning, design, and construction shall be considered in the financial feasibility study as if it had been incurred directly for the project.

(ii) The term of any liability amount determined in clause (i) of this subparagraph shall be the longest term of any liabilities issued or contemplated by the applicant within three years of the application date plus the time taken to fully pay any and all liability refundings, renegotiations, conversions, and extensions.

(D) A detailed analysis of costs over the expected financing period of the project, which shall include:

(i) costs of operations by reasonable expense categories for each year; and

(ii) costs of maintenance for each year, such costs identifying each major system, structure, and component of the project that is subject to wear or deterioration, and the analysis of such costs stating both the cost and the expected frequency of inspection, repair, renewal, rehabilitation, and/or replacement required to keep the project in like-new condition.

(E) A pro forma analysis based on cash basis accounting for each year of planning, design, construction, and the expected financing period of the project showing:

(i) anticipated cash receipts, sources of cash receipts, and rates charged to achieve those cash receipts;

(ii) anticipated cash disbursements;

(iii) anticipated cash balances;

(iv) cash used to meet the requirements of any bond sinking fund and loan or liability amortization payment.

(F) A description of the methods used in preparing the financial feasibility study, the assumptions contained in the study, and persons and entities responsible for the preparation of the study.

(G) An analysis of the need for the project and potential impact on traffic congestion and mobility, [ including identification of the Texas-Mexico Toll Bridge Study sector, as described in Appendix A of paragraph (4) of this section, in which the project is located, ] and:

(i) average annual daily traffic (AADT) in the study area [ sector ] for major arterials and controlled access roadways for both sides of the border for five years preceding the date of the application;

(ii) data from any existing international bridge or other international crossing in the study area [ sector and adjacent sectors ] indicating AADT for the five preceding years;

(iii) data from any existing international bridge or other international crossing in the study area [ sector and the adjacent sectors ] indicating average delay time for traffic seeking to use any international bridge or other international crossing for the five preceding years;

(iv) projected AADT for the proposed bridge and other crossings in the study area [ sector and adjacent sectors ] 20 years after completion (projections shall be based on the current department travel demand model, and the process used to make the projections shall be clearly identified and submitted with the data);

(v) a comparison of the project with other similar projects already in operation; and

(vi) a projection of changes in the free flow of trade caused by the project.

(3) Social and environmental impact. An applicant shall conduct a study of the social and environmental impact of the project[ , consistent with the spirit and intent of the National Environmental Policy Act (NEPA), Title 42, United States Code, §§4321 et seq., and Title 23, United States Code, §109(h), ] and shall provide for public involvement and notice to local officials .

(A) Environmental documentation. An applicant shall comply with the requirements in Chapter 2 of this title (relating to Environmental Policy) and shall obtain the environmental approvals required for the project. In addition to any approval required by a federal agency, the applicant shall obtain the department's approval of the form and content of an environmental document prepared under subchapters A and C of Chapter 2 of this title.

[ (i) An applicant shall prepare an environmental assessment or an environmental impact statement in accordance with NEPA.]

[ (ii) The form and content of an environmental assessment or environmental impact statement prepared by an applicant must be approved by the department.]

(B) Public involvement. An applicant shall comply with the public involvement requirements in Chapter 2 of this title that apply to paragraph (3)(A) of this section. Notices of public meetings and public hearings must include [ An applicant shall provide for public involvement by ]:

(i) a statement that the applicant intends to submit an international bridge application to the commission [ holding one or more public meetings ];

(ii) a description of the proposed bridge, including a description of the design and adjacent facilities and identification of the area to be served [ publishing a notice of the public meeting in local newspapers having a general circulation not less than 10 days before each public meeting ]; and

(iii) instructions that competing bridge applicants may submit information pertaining to the design, financial feasibility, and social and environmental impact of a competing project to the applicant no later than 60 days after the date of the notice [ notifying the department in writing not less than 10 days in advance of each public meeting ].

(C) Notice to local officials [ Record ]. The applicant shall send a copy of the notice described in paragraph (3)(B) of this section by first class mail to the county judge of each county within 150 miles of the location of the project and the mayor of each municipality within 50 miles of the location of the project. [ An applicant shall provide the department a summary of all public meetings held under this section. The summary and analysis for each public meeting shall include: ]

[ (i) a summary of the meeting;]

[ (ii) a summary of comments received, and the response to and analysis of comments; and]

[ (iii) a summary of the proposed changes in project location and design planned as a result of comments.]

[ (D) Revision to environmental document. An applicant shall revise the environmental document for the project to address any issues or concerns identified during the public involvement process.]

(4) Analysis of competing applications. An applicant shall address the impact of competing projects (if any) and demonstrate how its submittal is superior to that of any competing bridge applicant.

(A) The applicant's preliminary study analysis shall be performed depicting any competing projects. The applicant shall perform an analysis demonstrating the applicant's project as a stand-alone project and, if there is a competing project, an analysis showing both the applicant's project and any competing projects. The analysis reflecting the competing projects must demonstrate how design, traffic, financial, social, and environmental impacts are affected by the competing projects and shall include the rationale for how one project is superior based on these impacts, for example, cost benefits, project viability, better design, and less adverse social and environmental impacts.

(B) The applicant will not be required to include an analysis of the competing project unless the competing bridge applicant provides the information described in paragraph (3)(B)(iii) of this section by the deadline specified in that paragraph.

[ (4) Sectors. The following Appendix A describes the sectors identified in the Texas-Mexico Toll Bridge Study.]

[ Figure: 43 TAC §15.73(4) ]

§15.74.Application.

To secure approval of a project, an applicant must file an application and 20 copies of the application with the department's [ deputy ] executive director [ for transportation planning and development ] or his or her designee who shall serve as department liaison for the project. The application shall be in a form prescribed by the department, and must include [ be accompanied by ]:

(1) a description of the applicant, including:

(A) form of organization under the laws of this state; and

(B) history of operations and/or business conducted;

(2) a definition of major financial, operating, and business policies of the applicant that will affect operations or the conduct of business, including:

(A) key operating conditions; and

(B) compliance with existing federal, state, and local laws and regulations;

(3) the preliminary study completed in accordance with §15.73 of this subchapter [ title ] (relating to Preliminary Studies); and

(4) any written commitments from the appropriate federal jurisdictions of the United Mexican States to provide adequate roadway connections to the bridge, and similar commitments from state and municipal transportation agencies for any state highway or local street infrastructure necessary to make the bridge fully operational.

§15.75.Department Action.

(a) Coordination.

(1) Upon the receipt of a complete application, the department will submit a copy of the application and request views and comments from the:

(A) Department of Public Safety of the State of Texas;

(B) Texas Commission on Environmental Quality [ Natural Resource Conservation Commission ];

(C) Texas Historical Commission;

(D) Department of Agriculture;

(E) Texas Alcoholic Beverage Commission;

[ (F) Texas Department of Commerce;]

(F) [ (G) ] Office of the Governor;

(G) [ (H) ] any other state agency the department determines is appropriate considering the nature of the project; and

(H) [ (I) ] any entity which may be significantly affected by the project.

(2) The department will also seek the advice of the local metropolitan planning organization, if any, as to whether the project will be consistent with the regional transportation plan.

(3) The department will allow an agency or entity 20 days from the date the agency or entity receives a copy of the application for the submission of views and comments under this subsection.

(b) Process and analysis of application.

(1) The department reserves the right to return, or hold , pending corrections submitted by the applicant, an application that the department determines is not in full compliance with the requirements of §15.74 of this subchapter [ title ] (relating to Application). The department, when returning an application, will identify in writing all areas deemed to be deficient.

(2) The department and the commission will not perform work to recast, redraw, calculate, construct, reconstruct, or otherwise produce any element of the preliminary study which is not adequately presented by the applicant.

(3) The commission may consider missing, ambiguous, uncertain, or unclear elements in the financial feasibility study as tending to the conclusion that the project has substantial speculative elements in its financing and should not be approved.

(4) The commission will consider the impact of a competing bridge, whether proposed, approved, or constructed. The commission will consider information provided by a competing bridge applicant only to the extent the competing bridge applicant timely submitted the information to the applicant under §15.73 of this subchapter. The commission will consider any other information provided by the department.

(c) Public hearing. If the department finds that the application meets the requirements of this section [ §15.74 of this title (relating to Application) ], it shall notify the applicant of its findings, forward a copy of the findings to the Office of the Governor, and shall conduct a public hearing to receive public comment on the project. A public hearing held by the department under this subsection shall be conducted by the executive director of the department or the director's designee in accordance with §1.5 of this title (relating to Public Hearings). Any persons, including, but not limited to, official representatives of a county, municipality, metropolitan planning organization, or other governmental entity, and any individual, group, or association may provide comment.

(d) Report to commission. Subsequent to the public hearing, the department will submit the application together with its findings and recommendations to the commission for appropriate action. The department will consider the views and comments received under subsection (a) of this section prior to making its findings and recommendations.

§15.76.Commission Action.

(a) Commission analysis.

[ (1) ] The commission may consider the advice of the staff of the department and consultants that the commission may choose regarding the sufficiency of the information, the probable accuracy of projections, the anticipated financial condition of the application and the project, the impact of the project on the economy and free trade, and any other information the commission determines appropriate.

[ (2) The commission may use the Texas-Mexico Toll Bridge Study as the initial basis for evaluating the demand, impact on the economy and the potential impact on the free flow of trade anticipated by the project. An applicant may submit additional information which supports, amplifies, or rebuts data in the Texas-Mexico Toll Bridge Study in the applicant's feasibility study.]

(b) Comments and commitments of other entities. Prior to granting approval of a project, the commission shall consider, but is not bound by:

(1) the nature and extent of any commitments from Mexican authorities provided in accordance with §15.74(4) of this subchapter [ title ] (relating to Application); and

(2) the views and comments of an agency or entity listed in §15.75 of this subchapter [ title ] (relating to Department Action).

(c) Project requirements. The commission will not approve a project unless it finds that:

(1) the project will provide for all reasonable and feasible measures to avoid, minimize, or mitigate for adverse environmental impacts;

(2) the project is consistent with the state transportation plan and, if appropriate, with the regional transportation plan developed by a metropolitan planning organization having jurisdiction over the project; and

(3) the future transportation infrastructure, at the time of the bridge operations, on both sides of the border will be of sufficient capacity to support the new structure.

(d) Financial requirements. The commission will not approve a project if it finds that the project's financial prospects over the expected financing period of the project are likely to categorize the project as being of less than investment quality due to one or more of the following conditions:

(1) the project has more than minimal speculative elements in its prospective finances;

(2) the financial future of the project cannot be considered as well assured;

(3) protection of any lenders or bond holders is not well safeguarded over the expected financing period of the project; or

(4) the project will probably cause negative impacts on the economy or the free flow of trade that are greater than any probable positive impacts in the study area [ Texas-Mexico Toll Bridge Study sector where the project is located and adjacent sectors ].

(e) Final action.

(1) Approval or disapproval of the project shall be by written order of the commission, and shall include the rationale, findings, and conclusions on which approval or disapproval is based.

(2) The commission will approve or disapprove the application within 120 days of the date of receipt of a complete application. If an application is returned under §15.75 of this subchapter [ title relating to Department Action) ], the commission will approve or disapprove the application within 120 days of the date that re-submitted complete application has been received by the department.

(3) If the commission does not approve the application, the applicant shall withdraw the request for approval from the United States.

(4) [ (3) ] The department will provide written notification of the commission's action to the applicant and the Office of the Governor.

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 May 26, 2006.

TRD-200602922

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: July 9, 2006

For further information, please call: (512) 463-8683