Part 1. TEXAS DEPARTMENT OF TRANSPORTATION

Chapter 1. MANAGEMENT

Subchapter B. PUBLIC MEETINGS AND HEARINGS

43 TAC §1.4

The Texas Department of Transportation (department) proposes amendments to §1.4 concerning public access to commission meetings.

EXPLANATION OF PROPOSED AMENDMENTS

Historically, the Texas Transportation Commission (commission) awarded transportation funds on a project-by-project basis. Delegations composed of local government leaders or members of local organizations from around the state came before the commission to make presentations about the transportation needs of their geographical areas and to seek funding for local transportation projects. In 2002, the commission began to simplify the project planning process and has shifted a significant amount of the transportation decision making authority to local community leaders. This shift changed the way the department analyzes transportation projects and allocates funding across the state. The department reduced its 34 funding categories to 12. Eight of the new categories have direct local input. The changes have resulted in local leaders having more input in the selection of projects for which transportation funds are allocated. The commission now has the sole discretion to select projects in only one of the twelve categories (Category 12 - Strategic Priority) and funds in that category are used for projects that generally promote economic development and opportunity, provide system continuity with adjoining states and Mexico, increase efficiency on military deployment routes, implement the pass-through financing program, or address other strategic needs as determined by the commission.

Transportation Code, §201.802, requires the commission to develop and implement policies that provide the public with a reasonable opportunity to appear before the commission and to speak on any issue under the jurisdiction of the commission. Section 1.4 was adopted to address that requirement and subsection (d) of that section provides the framework for delegations to appear before the commission. The procedure provided by subsection 1.4(d) is necessarily complex and takes significant resources of the delegation and the department. It requires a delegation to file a written petition at least three months before the requested appearance date (in contrast to 20 days for a request from an individual under subsection 1.4(c)) and requires the district in which the project is located to review the petition and file a report with the executive director. The change in the planning and funding of transportation projects has all but eliminated the necessity for delegations to present their proposed transportation projects to the commission.

The purpose of the amendment to §1.4 is to reflect the effects of the policy changes made by the commission and to streamline the process for the addition of commission agenda items. A person who currently is required to follow the delegation procedure will have, after the rule change, the opportunity to request the addition of an agenda item under subsection 1.4(c) or the opportunity to address the commission during the open comment period under subsection 1.4(e) (redesignated as subsection 1.4(d) by this amendment).

Amendments to §1.4(b) remove language that is made unnecessary by the deletion of subsection (d) and change a cross reference affected.

Amendments to §1.4(c) remove language that is unnecessary because of the deletion of subsection (d). Additionally, the amendment gives the commission chair (chair), rather than the department, the discretion to place an item on the commission's agenda if the chair determines that the item is within the commission's jurisdiction and concerns a matter of significant public interest. Under Transportation Code, §201.054, the chair is responsible for overseeing the preparation of the commission meeting agenda and this amendment brings the rule in line with the statute.

Section 1.4(d), which provides the procedure for a delegation of representatives of a local government or group to appear before the commission concerning a transportation project, is deleted.

Subsections 1.4(e) - (i) are renumbered as the result of the repeal of former subsection 1.4(d) and subsection 1.4(e) is amended to change a cross reference.

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 section as proposed.

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

PUBLIC BENEFIT

Mr. Jackson has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcing or administering the amendments will be the streamlining of public meetings and hearings. There will be no effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §1.4 may be submitted to Bob Jackson, General Counsel, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on August 13, 2007.

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, §201.802, which requires the commission to develop and implement policies that provide the public with a reasonable opportunity to appear before the commission and to speak on any issue under the jurisdiction of the commission.

CROSS REFERENCE TO STATUTE

Transportation Code, §201.054 and §201.802.

§1.4.Public Access to Commission Meetings.

(a) (No change.)

(b) Posted agenda items. A person may speak before the commission on any matter on a posted agenda [ , other than a presentation by a delegation under subsection (d) of this section, ] by submitting a request, in a form and manner as prescribed by the department, prior to the matter being taken up by the commission. A person speaking before the commission on an agenda item will be allowed an opportunity to speak:

(1) prior to a vote by the commission on the item; and

(2) for a maximum of three minutes, except as provided in subsection (g)(6) [ (h)(6) ] of this section.

(c) New agenda items.

(1) A person may request the addition of [ , other than a delegation under subsection (d) of this section, may request the department to add ] an item to the commission agenda by submitting, no less than 20 days prior to the date which has been set for the next meeting, the following information:

(A) the name and address of the person making the request;

(B) a clear and concise statement of the subject of the proposed agenda item; and

(C) a brief summary of the action sought.

(2) If the chair [ department ] determines that the proposed item is within the jurisdiction of the commission and that the proposed item concerns a matter in which there is sufficient public interest to warrant consideration by the commission as an agenda item, the chair may place the matter [ , the matter will be placed ] on the posted agenda for the next or a subsequent meeting, consistent with available time. [ If the proposed item concerns a matter that has appeared on the posted agenda of a commission meeting during the previous six months, the request may be denied or deferred for consideration at the discretion of the department and the commission. ]

[ (d) Delegations.]

[ (1) Petition. A delegation consisting of the representatives of one or more local governments or of an organization of two or more persons may petition the department to appear before the commission to seek commission action on a maximum of three specific transportation projects, or on the general transportation needs for a specific geographical area.]

[ (2) Content of petition. A petition filed under this subsection must be in writing, directed to the department's district office of the district in which the project is located, and must be received by the chief executive officer in charge of the district (district engineer) no less than 90 days prior to the date of the requested appearance. The petition must include:]

[ (A) the name and address of the petitioner;]

[ (B) a statement that the petitioner desires to appear on the petitioner's own behalf or as the representative of a named organization or local government;]

[ (C) a clear and concise statement of the subject of the proposed presentation;]

[ (D) a brief summary of the action sought;]

[ (E) a brief description of known or potential adverse impacts on the environment;]

[ (F) the name and address of each opponent, if any, to the proposed action or relief sought; and]

[ (G) a statement of the applicable metropolitan planning organization's position and endorsement, if any, of the project or projects.]

[ (3) Highway projects. A delegation requesting action on a highway project must submit with the petition a letter containing:]

[ (A) project limits;]

[ (B) an estimate of the cost of the project;]

[ (C) a description of the existing facility (if any);]

[ (D) a description of the requested improvement;]

[ (E) proposed local government participation (city, county) for:]

[ (i) right-of-way;]

[ (ii) utility adjustments;]

[ (iii) environmental mitigation;]

[ (iv) construction; and]

[ (v) other project components; and]

[ (F) any proposed participation in the project by other public or private entities.]

[ (4) District review. The district will review the petition and advise the delegation if any additional information is necessary. The district will submit to the executive director the petition followed by a report containing background information, the district's analysis, and district recommendations.]

[ (5) Opposition. The department will notify any opponents identified in a petition filed under this subsection or who may be otherwise known to the department. An opponent will be afforded an opportunity to appear before the commission as provided in paragraph (6)(A) of this subsection.]

[ (6) Presentation.]

[ (A) Except as provided in subsection (h)(6) of this section, a delegation will be allowed to speak for a maximum of 20 minutes on a maximum of three projects prioritized by the delegation or on the general transportation needs for a specific geographical area, and opponents will be allowed to follow the presentation of the delegation with a presentation not to exceed a total of 20 minutes.]

[ (B) Other than elected public officials, no more than three persons may speak for a delegation.]

(d) [ (e) ] Open comment period.

(1) At the conclusion of the posted agenda of each regular business meeting the commission will allow an open comment period, not to exceed one hour, to receive public comment on any other matter that is under the jurisdiction of the commission.

(2) A person desiring to appear under this subsection must complete a registration form, as provided by the department, prior to the beginning of the open comment period.

(3) Except as provided in subsection (g)(6) [ (h)(6) ] of this section, each person will be allowed to speak for a maximum of three minutes for each presentation in the order in which he or she registered.

(e) [ (f) ] Disability accommodation. Persons with disabilities who have special communication or accommodation needs and who plan to attend a meeting may contact the office of the secretary to the commission in Austin. Requests should be made at least two days before a meeting. The department will make every reasonable effort to accommodate these needs.

(f) [ (g) ] Notice. For each commission meeting an agenda will be filed with the Texas Register in accordance with the requirements of the Open Meetings Act, Government Code, Chapter 551.

(g) [ (h) ] Conduct and decorum. The commission will receive public input as authorized by this section, subject to the following guidelines.

(1) Questioning of those making presentations will be reserved to commissioners and the department's administrative staff.

(2) Organizations, associations, or groups are encouraged to present their commonly held views, and same or similar comments, through a representative member where possible.

(3) Presentations shall remain pertinent to the issue being discussed.

(4) A person who disrupts a meeting must leave the meeting room if ordered to do so by the chair.

(5) Time allotted to one speaker may not be reassigned to another speaker.

(6) The time allotted for presentations or comments under this section may be increased or further limited by the chair, or, in the chair's absence, the acting chair, as may be appropriate to assure opportunity for the maximum number of persons to appear.

(h) [ (i) ] Waiver. Subject to the approval of the chair, a requirement of this section may be waived in the public interest if necessary for the performance of the responsibilities of the commission or the department.

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

Filed with the Office of the Secretary of State on June 29, 2007.

TRD-200702744

Bob Jackson

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 12, 2007

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

Subchapter B. UTILITY ADJUSTMENT, RELOCATION, OR REMOVAL

43 TAC §21.23

The Texas Department of Transportation (department) proposes amendments to §21.23, concerning state participation in toll-related utility relocations.

EXPLANATION OF PROPOSED AMENDMENTS

Transportation Code, §203.092, provides that the department and a utility equally share the cost of the relocation of a utility facility required by the improvement of a toll-related facility. Section 203.092 limits the cost-sharing arrangement to relocations that are made before September 1, 2007 and expire on that date. Accordingly, §21.23 currently limits reimbursement to eligible relocation costs that are actually incurred before September 1, 2007. Senate Bill 1209, 80th Legislature, Regular Session, 2007, which took effect May 17, 2007, amended Transportation Code, §203.092, to extend the cost-sharing arrangement to toll-related utility relocations made before September 1, 2013 and to extend the expiration date of the applicable statutory provisions to that date. The amendments to §21.23 are consistent with the changes made by Senate Bill 1209.

The amendment to §21.23(d)(2) changes the expiration date for state reimbursement for utility relocations on toll-related projects from September 1, 2007 to September 1, 2013.

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 amendments as proposed.

John Campbell, Director, Right of Way Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.

PUBLIC BENEFIT

Mr. Campbell has also determined that for each year of the first five years the amended section is in effect, the public benefit anticipated as a result of enforcing or administering the amendments will be to further the department's mission to provide an efficient, timely, cost effective and fair process of adjusting utility facilities required by improvements to the state highway system. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §21.23 may be submitted to John Campbell, Director, Right of Way Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on August 13, 2007.

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §203.095, which directs the department to adopt rules to implement Transportation Code, Chapter 203, Subchapter E concerning relocation of utility facilities required by improvements to the state highway system.

CROSS REFERENCE TO STATUTE

Transportation Code, §203.092.

§21.23.State Participation in Toll-Related Relocations.

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

(d) Eligible relocation costs.

(1) (No change.)

(2) The department will reimburse 50% of eligible relocation costs that are actually incurred prior to September 1, 2013 [ 2007 ]. Relocation costs incurred on or after that date [ September 1, 2007 ] will not be reimbursed.

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

Filed with the Office of the Secretary of State on June 29, 2007.

TRD-200702745

Bob Jackson

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 12, 2007

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