Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 15.
TRANSPORTATION PLANNING AND PROGRAMMING
Subchapter E. FEDERAL, STATE, AND LOCAL PARTICIPATION
43 TAC §15.52
The Texas Department of Transportation adopts amendments
to §15.52, concerning agreements for federal, state, and local participation.
The amended section is adopted without changes to the proposed text as published
in the June 9, 2000, issue of the
Texas Register
(25 TexReg 5608) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Transportation Code, §222.052 authorizes a local government to contribute
funds to be spent by the Texas Transportation Commission in the development
and construction of the public roads and the state highway system within the
local government. Pursuant to this section, the department requires a local
government to enter into a cost participation agreement with the department
related to a highway improvement project.
Local governments have limited financial resources with which to meet their
many financial obligations. Their cost participation in off system bridge
program projects is often prohibitive which results in delaying necessary
bridge improvements that are critical in nature. Local governments are also
reluctant to commit their scarce resources to these projects due to the potential
risk of cost escalation resulting in the local government owing the department
more than the amount originally estimated.
To ensure the safety of the travelling public and to accelerate these needed
bridge improvements, §15.52 is amended to change the required provisions
of cost participation agreements that the department and local governments
enter into when a local government is responsible for providing cost participation
for a highway improvement project included in the off state highway system
bridge program.
Due to the critical nature of these safety improvements and to help minimize
the risk of cost escalation to the local government, amendments to §15.52(3)
provide a new funding arrangement for off state highway system bridge projects.
The local participation is based upon the department's estimate of the eligible
work at the time of the agreement and would not be adjusted during construction
except as needed to include any project cost item or portion of a cost item
ineligible for state or federal participation. If it is found that the amount
received is in excess of the local government's required funding share, the
excess funds paid by the local government shall be returned. To maintain the
intent of the federal bridge program, the local government is also responsible
for any cost resulting from changes made at the request of the local government,
either during preliminary engineering or construction.
To allow the local government time to budget for its cost participation,
the amendments retain the provision for an initial payment for its portion
of the estimated cost of preliminary engineering for the project upon execution
of the agreement, and payment of the remainder due prior to the department's
scheduled date for contract letting.
To allow for an efficient transition consistent with state law, the amendments
apply to projects for which the construction contract has not been awarded.
The department will not return any funds already received by the department
under the terms of existing agreements.
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 Texas Department of Transportation.
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 July 31, 2000.
TRD-200005266
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: August 20, 2000
Proposal publication date: June 9, 2000
For further information, please call: (512) 463-8360
43 TAC §15.55
The Texas Department of Transportation adopts amendments
to §15.55, concerning construction cost participation, with changes to
the proposed text as published in the June 9, 2000, issue of the
Texas Register
(25 TexReg 5611).
EXPLANATION OF ADOPTED AMENDMENTS
Transportation Code, §222.053(b), authorizes the Texas Transportation
Commission to require, request, or accept from a political subdivision matching
or other local funds to make the most efficient use of its highway funding.
Pursuant to this authority, the commission has previously adopted §§15.50-15.56,
to specify the roles of federal, state, and local entities in the development
of highway improvement projects.
Current §15.55 requires a local government to fund 10% of an off-state
highway system bridge project. The amendments add a new subsection (d) to §15.55.
Subsection (d) authorizes the department to waive the local government's required
10% fund participation in an off state system bridge program project if the
local government agrees to perform an equivalent dollar-amount of structural
improvement work on another deficient bridge(s) or other mainlane cross-drainage
structure(s) within the local government's jurisdiction.
Subsection (d)(1) defines the words and terms used in the new subsection.
While a bridge on a participation-waived project typically must be a roadway-bearing
structure of at least 20-foot length, a "bridge" on an equivalent-match project(s),
as defined in this subsection, includes mainlane cross-drainage structures
regardless of length along the roadway. This expansion of definition is needed
to provide more assistance to the local governments, and additional flexibility
in addressing their roadway structural needs. The term "deficient bridge"
is defined as a bridge identified by the department as having a condition
or load capacity that is inadequate. The definition is necessary in order
to ensure that the equivalent-match program targets structurally inadequate
bridges with a resulting increase in bridge safety for the traveling public.
The definition of "participation-waived project" is limited to projects that
are on the department's Unified Transportation Program and that satisfy minimum
standards established by the department. These stipulations are required to
remain consistent with the basic purpose of the bridge program, i.e., the
remedy of deficient bridges.
Subsection (d)(2) authorizes the department's district engineer to approve
a waiver. In order to receive consideration for a waiver, the local governmental
body is required to commit by written resolution to spend an equivalent dollar-amount
of funds for structural improvement work on another bridge(s) within its jurisdiction.
An equivalent amount includes, but is not limited to, expenditures for direct
or indirect costs for structural improvement work on bridge(s) in the equivalent-match
project(s).
Subsection (d)(3) describes the eligibility requirements for a waiver.
First, to assure that the integrity of the state's fund accounting and construction
project letting systems is maintained, the construction contract for the participation-waived
project may not have been awarded. Second, to ensure that the work is within
the intent and the monetary limitations of the rules, work on the equivalent-match
project may not have begun prior to approval of the waiver. Third, the local
government must be in compliance with load posting and closure regulations
as defined in the National Bridge Inspection Standards under 23 C.F.R. §650.303.
This compliance is necessary to further support the basic purpose of the bridge
program, which is to remedy deficient bridges and enhance bridge safety through
bridge replacement and rehabilitation. Fourth, the bridge on the proposed
equivalent-match project(s) must be classified as deficient, or a bridge that
is weight restricted for school buses and is located on a school bus route.
This requirement is necessary to properly discharge the basic purpose of the
bridge program and to ensure that a maximum number of bridges are made safe
for school bus loading. Finally, the structural improvement work on the equivalent-match
project must increase the load capacity of the existing bridge or upgrade
the bridge to its original capacity, with a minimum upgrade to safely carry
school bus loading if located on a school bus route. This requirement is needed
to ensure substantive improvement in the load carrying capacity of the deficient
bridge.
Subsection (d)(4) describes the procedures a local government must follow
to request a waiver. The local government is required to provide a written
request to the department district engineer that includes the location(s),
description of structural improvement work proposed, estimated cost for the
equivalent-match project(s), and a copy of the resolution of the local governmental
body. These requirements are needed to properly determine if the waiver complies
with all the requirements of this subsection. The resolution from the local
government must acknowledge assumption of all responsibilities for engineering
and construction and complying with all applicable state and federal environmental
regulation and permitting requirements for the bridge(s) on the equivalent-match
project(s). Acknowledgement of these responsibilities is necessary since the
bridges on the equivalent-match projects are not a part of the state highway
system. Also, structural improvement work is being accomplished outside the
department's purview. Therefore, in the interest of public safety and legal
compliance, the department desires to inform the local government of its responsibilities.
Subsection (d)(5) specifies the criteria that will be considered by the
district engineer when deciding whether to approve a waiver. The department
is responsible for the administration of the off system bridge program, and
desires to enhance the safety of the traveling public and ensure stewardship
of public funds. The criteria described in this paragraph will ensure that
a project is not undertaken by a local government without assurance that the
public will be best served by the proposal. The district engineer will consider
the type of work proposed for the equivalent-match project(s). Consideration
of the type of work is needed to ensure that, to the greatest extent possible,
the most deficient and unsafe off system bridges are being addressed. "Regional
transportation needs" are required to be addressed to ensure that optimum
movement and volume of traffic service are considered. The past performance
of the local government in the participation-waived program must be considered
in order to ensure overall efficiency and equitable administration of this
program.
Subsection (d)(6) describes the procedures to be used by the district engineer
when notifying a local government of the approval or disapproval of a waiver.
After review of the request for waiver by the district engineer, a letter
will be submitted to the requesting local government indicating approval or
disapproval. If disapproved, the letter will state the reasons for disapproval.
If the waiver is approved, the letter will state that the local government,
for the equivalent-match project(s), will assume: all costs of the work; responsibility
for complying with all applicable state and federal environmental regulations
and permitting requirements; and responsibility for the engineering and construction
necessary for completion of the work.
Subsection (d)(7) describes additional provisions and conditions related
to the administration of this subsection. The local government will be allowed
three years after the contract award of the participation-waived project to
complete structural improvements on the equivalent-match project(s). The department
believes this requirement will allow the local government time to marshal
forces, accumulate materials, and otherwise carry out the agreed-to work.
Within the specified three-year period for accomplishing the equivalent-match
project(s), and no later than 30 days after completion of the equivalent-match
project(s), documentation of completion of the equivalent-match project(s)
requirement will be provided by letter to the district engineer. This notification
is necessary in order for the department to verify compliance. If the local
government fails to adequately complete the equivalent-match project(s), the
local government will be excluded from future waivers under this subsection
for a minimum of five years. This requirement is necessary to ensure program
efficiency and equitable administration for all participating local governments.
The local government is responsible for all of the direct cost of any participation-waived
project cost item or portion of a cost item that is not eligible for federal
participation under the Federal Highway Bridge Replacement and Rehabilitation
Program (HBRRP) under 23 U.S.C. §144 and 23 C.F.R. §650 Subpart
D. The local government is also responsible for any costs resulting from changes
made at the request of the local government. Since participation-waived projects
are HBRRP projects, all work involved is required to meet specified eligibility
requirements.
A local government located in an economically disadvantaged county that
receives an adjustment under subsection (b) of this section may participate
in the provisions of subsection (d) in the amount of its reduced matching
funds requirement. This requirement is needed for equitable administration
of the equivalent-match program to all local governments. To ensure compliance
with state law, the department will not reimburse funds already received by
the department under the terms of existing agreements.
COMMENTS
No comments were received on the proposed amendments; however, to clarify
the intent of subsection (d)(3)(D) the department is adopting with a non-substantive
change.
Subsection (d)(3)(D) is revised by deleting the phrase "on a school bus
route that is weight restricted for school buses;" and replacing it with the
phrase "that is weight restricted for school buses and is located on a school
bus route;". This change in wording is made to clarify intent.
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 Texas Department of Transportation.
§15.55.Construction Cost Participation.
(a)
Required cost participation. The commission may require,
request, or accept from a local government matching or other funds, rights-of-way,
utility adjustments, additional participation, planning, documents, or any
other local incentives.
(b)
Economically Disadvantaged Counties. In evaluating a proposal
for a highway improvement project in a local government that consists of all
or a portion of an economically disadvantaged county, the commission shall,
for those projects in which the commission is authorized by law to provide
state cost participation, adjust the minimum local matching funds requirement
after evaluating a local government's effort and ability to meet the requirement.
(1)
Request for adjustment. The city council, county commissioners
court, district board, or similar governing body of a local government that
consists of all or a portion of an economically disadvantaged county shall
submit a request for adjustment to the local district office of the department.
The request will include, at a minimum:
(A)
the proposed project scope;
(B)
the estimated total project cost;
(C)
a breakdown of the anticipated total cost by category (e.g.,
right-of-way, utility adjustment, plan preparation, construction);
(D)
the proposed participation rate;
(E)
the nature of any in-kind resources to be provided by the
local government;
(F)
the rationale for adjusting the minimum local matching
funds requirement; and
(G)
any other information considered necessary to support a
request.
(2)
Evaluation. In evaluating a request for an adjustment to
the local matching funds requirement, and a local government's effort and
ability to meet the requirement, the commission will consider a local government's:
(A)
population level;
(B)
bonded indebtedness;
(C)
tax base;
(D)
tax rate;
(E)
extent of in-kind resources available; and
(F)
economic development sales tax.
(c)
Participation ratios. The following Appendix A to this
section establishes federal, state, and local cost participation ratios for
highway improvement projects, subject to the availability of funds to the
department.
Figure: 43 TAC §15.55(c) (No change.)
(d)
Off state highway system bridge program.
(1)
Definitions. The following words and terms, when used in
this subsection, shall have the following meanings, unless the context clearly
indicates otherwise.
(A)
Bridge--For an equivalent-match project, a bridge or other
mainlane cross-drainage structure.
(B)
Deficient bridge--A bridge having a condition or load capacity
that is inadequate.
(C)
District engineer--The chief executive officer in each
designated district office of the department.
(D)
Equivalent-match project--A project in which the local
government will structurally improve off state system bridges utilizing 100%
local funds.
(E)
Participation-waived project--An off-state system bridge
project in which the state agrees to pay for local participation for eligible
preliminary engineering, construction, and construction engineering costs
as shown in subsection (c) of this section. This project must be on the department's
approved Unified Transportation Program, satisfy minimum standards established
by the department for off state system bridges, and meet the additional requirements
of this subsection.
(2)
Waiver. The district engineer may waive the requirement
for a local government to provide the original 10% estimate of direct costs
for preliminary engineering, construction engineering, and construction funds
on the participation-waived project(s) if the local governmental body commits
by written resolution, as described in paragraph (4) of this subsection, to
spend an equivalent amount of funds for structural improvement work on another
bridge or bridges on the equivalent-match project(s) within its jurisdiction.
An equivalent amount includes, but is not limited to, expenditures for direct
or indirect costs for structural improvement work on bridge(s) in the equivalent-match
project(s).
(3)
Eligibility. A local government is eligible for a waiver
if:
(A)
the construction contract for the participation-waived
project has not been awarded;
(B)
work on the equivalent-match project has not begun prior
to approval of the waiver;
(C)
the local government is in compliance with load posting
and closure regulations as defined in the National Bridge Inspection Standards
under 23 C.F.R. §650.303;
(D)
the bridge on the proposed equivalent-match project(s)
is a deficient bridge, or a bridge that is weight restricted for school buses
and is located on a school bus route; and
(E)
the equivalent-match project increases the load capacity
of the existing bridge or upgrades the bridge to its original capacity, with
a minimum upgrade to safely carry school bus loading if located on a school
bus route.
(4)
Request for waiver. To request a waiver, a local government
must provide a written request to the district engineer that includes the
location(s), description of structural improvement work proposed, estimated
cost for the equivalent-match project(s), and a copy of the local governmental
body's resolution. The resolution must acknowledge assumption of all responsibilities
for engineering and construction and complying with all applicable state and
federal environmental regulations and permitting requirements for the bridge(s)
on the equivalent-match project(s).
(5)
Considerations. In approving a request for waiver, the
district engineer will consider:
(A)
the type of work proposed for the equivalent-match project(s);
(B)
regional transportation needs; and
(C)
past performance under this subsection.
(6)
Approval. The district engineer will submit a letter to
the local government indicating the district engineer's approval or disapproval
of the waiver. If disapproved, the letter will state the reasons for disapproval.
If the waiver is approved, the letter will state that the local government,
for the equivalent-match project(s) will assume:
(A)
all costs of the work;
(B)
responsibility for complying with all applicable state
and federal environmental regulations and permitting requirements; and
(C)
responsibility for the engineering and construction necessary
for completion of the work.
(7)
Agreement and conditions.
(A)
If the district engineer approves the waiver, the local
government and the department will enter into an agreement for the participation-waived
project as specified in §15.52 of this subchapter.
(B)
Local governments will be allowed three years after the
contract award of the participation-waived project to complete structural
improvements on the equivalent-match project(s). No later than 30 days after
completion, documentation of completion of the equivalent-match project(s)
requirement will be provided by letter to the district engineer. If the local
government fails to adequately complete the equivalent-match project(s), it
will be excluded from future waivers under this subsection for a minimum of
five years.
(C)
The local government is responsible for all of the direct
cost of any participation-waived project cost item or portion of a cost item
that is not eligible for federal participation under the Federal Highway Bridge
Replacement and Rehabilitation Program under 23 U.S.C. §144 and 23 C.F.R. §650
Subpart D. The local government is also responsible for any costs resulting
from changes made at the request of the local government.
(D)
The local government will be responsible for 100% of right
of way and utilities for the participation-waived project.
(E)
A local government located in an economically disadvantaged
county that receives an adjustment under subsection (b) of this section may
participate in the provisions of this subsection in the amount of its reduced
matching funds requirement.
(F)
The department will not reimburse funds already received
by the department under the terms of existing agreements.
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 July 31, 2000.
TRD-200005267
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: August 20, 2000
Proposal publication date: June 9, 2000
For further information, please call: (512) 463-8630
Subchapter B. MOTOR VEHICLE REGISTRATION
Chapter 17.
VEHICLE TITLES AND REGISTRATION