TITLE 43.TRANSPORTATION

Part 1. TEXAS DEPARTMENT OF TRANSPORTATION

Subchapter D. PUBLIC PARTICIPATION PROGRAMS

The Texas Department of Transportation adopts the repeal of §2.67, concerning adopt-an-area. Section 2.67 is repealed without changes to the proposed text as published in the November 9, 2001, issue of the Texas Register (26 TexReg 9070), and will not be republished.

EXPLANATION OF ADOPTED REPEAL

Government Code, §2001.039, requires state agencies to readopt their rules every four years and, prior to readopting, to consider whether the reason for each rule continues to exist. In accordance with Texas Department of Transportation's rule review plan, Chapter 2, Environmental Policy, was reviewed during January 2001. The department's internal review revealed that §2.67, regarding adopt-an-area, should be repealed since the program has not attracted any donors and its continuance would be impractical. The department readopted Chapter 2, with the exception of §2.67 in the April 13, 2001, edition of the Texas Register (26 TexReg 2860).

COMMENTS

No comments were received regarding the proposed repeal.

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 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 January 31, 2002.

TRD-200200602

Richard D. Monroe

General Counsel

Texas Department of Transportation

Effective date: February 20, 2002

Proposal publication date: November 9, 2001

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

Chapter 15. TRANSPORTATION PLANNING AND PROGRAMMING

Subchapter K. ROAD UTILITY DISTRICTS

43 TAC §§15.130 - 15.136

The Texas Department of Transportation adopts new §§15.130-15.136, concerning road utility districts. Sections 15.130-15.136 are adopted without changes to the proposed text as published in the November 9, 2001, issue of the Texas Register (26 TexReg 9071), and will not be republished.

EXPLANATION OF ADOPTED NEW SECTIONS

The Texas Transportation Commission (commission) last adopted rules relating to road utility districts in 1985. Since that time, there have been numerous changes in the organization of the Texas Department of Transportation and in the titles of its employees. These obsolete terms might confuse the public, and it is therefore desirable to update the terminology of the rules. The existing rules relating to road utility districts are codified in Chapter 21. Existing §§21.171-21.312 are repealed and simultaneously adopted as new §§15.130-15.136 because road utility districts relate more closely to transportation planning than to right of way issues. In addition, the rules have been shortened by about one-third by eliminating unnecessary and duplicative provisions. Throughout, terms and cross-references have been updated, language has been clarified, and the structure of the rules has been simplified.

In general, the rules are now organized in a manner that is more closely aligned with the subchapters in Transportation Code, Chapter 441. If a road utility district is exempted from some subchapters, this will make it easier to determine which rules still apply.

Section 15.130 is based on former §21.181. The language has been shortened and clarified to eliminate unnecessary verbiage.

Section 15.131 is based on former §21.171. The definitions of act, approval statement, bridge layouts, and district have been eliminated as unnecessary. The definitions of commission and executive director have been updated to reflect current terminology. The definitions of drainage works, final plans, hydraulic design data, preliminary plans, and roads have been incorporated into the other definitions or substantive sections in which these terms were used. New definitions of plans and specifications have been added for ease of reference. Registered professional engineer is changed to licensed professional engineer to conform to current terminology.

Section 15.132 has been drawn from several former sections to consolidate provisions relating to the filing of documents. Section 15.132(a) is based on former §21.212. Section 15.132(b) is based on former §21.211. Section 15.132(c) is based on former §21.191.

Section 15.133 has been drawn from several former sections to consolidate provisions relating to the creation of a road utility district. Its provisions correspond to Transportation Code, Chapter 441, Subchapter B. It also applies to a grant of road utility district powers to a conservation and reclamation district under Transportation Code, Chapter 441, Subchapter C.

Section 15.133(a) is based on former §21.201. Section 15.133(b) is based on former §§21.221, 21.222, and 21.224. The hearing required by Transportation Code, 441.022 is no longer conducted as a contested case hearing, which is adversarial in nature and thus inappropriate in this context. Instead, the hearing will be conducted in the same manner as a public hearing on the adoption of proposed rules. Provisions relating to a formal hearing officer's report are omitted; matters presented during a hearing will instead be considered along with all other factors by the department in making a recommendation to the commission.

Section 15.133(c)(1) is based on the last sentence in former §21.221. Section 15.133(c)(2) is based on former §21.182. The former rule stated that the commission shall consider all the listed criteria; the adopted rule states only that the commission may consider the listed criteria. This provides the commission with more flexibility to focus on the particular considerations that are most relevant in any application. Section 15.133(c)(3) is based on former §21.231. Section 15.133(c)(4) is based on former §21.232.

Section 15.134 has been drawn from several former sections to consolidate provisions relating to the operation of a road utility district. Its provisions correspond to Transportation Code, Chapter 441, Subchapters D, E, and F.

Section 15.134(a) is based on former §21.271. Section 15.134(b)(1) is based on former §21.251. Former §21.251(a)(7)(E) is omitted because it appears to contemplate an unauthorized dissolution in violation of §15.136 and Transportation Code, Chapter 441, Subchapter L. Section 15.134(b)(2) is based on former §21.261. Section 15.134(b)(3) is based on the last sentence of former §21.181. Section 15.134(c)(1) is based on former §21.284. Section 15.134(c)(2) is based on former §21.282 and §21.283. Section 15.134(c)(3) is based on former §21.285. Section 15.134(c)(4) is based on former §21.281.

Section 15.135 is based on former §21.301 and corresponds to Transportation Code, Chapter 441, Subchapter G.

Section 15.136 is based on former §21.311 and §21.312 and corresponds to Transportation Code, Chapter 441, Subchapter L. Subsection 15.136(d) has been added to provide further detail on relevant considerations in dissolving a road utility district.

In addition to the specific omissions noted above, the following items are omitted from the adopted rules. The former rules contained several references to the department's ability to seek assistance from the attorney general if needed. This language was omitted as unnecessary because the department always has the option of seeking assistance from the attorney general in any legal dispute. These references were contained in former §§21.251(a)(7)(D), 21.262, 21.282, 21.284, and 21.286.

The former rules contained several references to the responsibility of a road utility district to abide by the statute and the commission's rules. This language was omitted as unnecessary because any entity must always act in conformity with law. These references were contained in former §§21.171(2), 21.191, 21.201, 21.222, 21.224, 21.285, 21.301, and 21.312.

Former §21.223 provided that the executive director of the department shall review submissions and make recommendations to the commission. This provision was omitted as unnecessary because the executive director's authority is fully established by §1.2(a), relating to department organization and responsibilities, and Transportation Code, §201.301.

COMMENTS

No comments were received on the proposed new sections.

STATUTORY AUTHORITY

The new sections 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. In addition, the new sections are adopted under Transportation Code, §441.002, which provides the Texas Transportation Commission with the authority to establish rules relating to road utility districts.

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 January 31, 2002.

TRD-200200603

Richard D. Monroe

General Counsel

Texas Department of Transportation

Effective date: February 20, 2002

Proposal publication date: November 9, 2001

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

Chapter 21. RIGHT OF WAY

Subchapter J. ROAD UTILITY DISTRICTS

43 TAC §§21.171, 21.181, 21.182, 21.191, 21.201, 21.211, 21.212, 21.221 - 21.224, 21.231, 21.241, 21.251, 21.261, 21.262, 21.271, 21.281 - 21.286, 21.301, 21.311, 21.312

The Texas Department of Transportation adopts the repeal of §§21.171, 21.181, 21.182, 21.191, 21.201, 21.211, 21.212, 21.221-21.224, 21.231, 21.241, 21.251, 21.261, 21.262, 21.271, 21.281-21.286, 21.301, 21.311, and 21.312, concerning road utility districts. These sections are repealed without changes to the proposed text as published in the November 9, 2001, issue of the Texas Register (26 TexReg 9076), and will not be republished.

EXPLANATION OF ADOPTED REPEALS

The Texas Transportation Commission last adopted rules relating to road utility districts in 1985. Since that time, there have been numerous changes in the organization of the Texas Department of Transportation and in the titles of its employees. These obsolete terms might confuse the public, and it is therefore desirable to update the terminology of the rules. Moreover, the rules are being repealed from Chapter 21 and simultaneously adopted as new §§15.130-15.136 because road utility districts relate more closely to transportation planning than to right of way issues.

COMMENTS

No comments were received regarding the proposed repealed sections.

STATUTORY AUTHORITY

The repeals 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. In addition, the repeals are adopted under Transportation Code, §441.002, which provides the Texas Transportation Commission with the authority to establish rules relating to road utility districts.

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 January 31, 2002.

TRD-200200604

Richard D. Monroe

General Counsel

Texas Department of Transportation

Effective date: February 20, 2002

Proposal publication date: November 9, 2001

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

Chapter 22. USE OF STATE PROPERTY

Subchapter C. USE OF STATE INTELLECTUAL PROPERTY

43 TAC §§22.20 - 22.22

The Texas Department of Transportation adopts amendments to §§22.20-22.22, concerning the use of state intellectual property. Sections 22.20-22.22 are adopted without changes to the proposed text as published in the November 9, 2001, issue of the Texas Register (26 TexReg 9077), and will not be republished.

EXPLANATION OF ADOPTED AMENDMENTS

Transportation Code, §201.205 authorizes the department to apply for, register, secure, hold, and protect copyrights, trademarks, patents, or other evidence of protection or exclusivity. The department may enter into a license agreement with a third party for the receipt of license fees, royalties, or other consideration, including nonmonetary compensation, for the use of its intellectual property. The department is authorized to adopt and enforce rules necessary to implement that section. Government Code, §2054.115 requires the department to obtain appropriate compensation for the use of software developed by the department. Sections 22.20-22.22 prescribe the policies and procedures governing the protection of department intellectual property, and the use of department intellectual property by third parties through the licensure of the intellectual property.

The amendments to §22.20 reflect the codification in Transportation Code, §201.205, of the department's authority to protect and license its intellectual property and the authority granted by that section to obtain nonmonetary compensation in a license of intellectual property. Changes are also made to improve clarity and grammar.

The amendments to §22.21 reflect changes to the department's organizational structure. A reorganization of the department eliminated a level of management between the department's administration and its district engineers and division and office directors. This senior management team was responsible for approving the licensure of department intellectual property. Amendments to §22.22 give that authority to the district engineer, division director, or office director with jurisdiction over the intellectual property. Amendments to §22.21 define those persons and delete definitions for senior management team member and Intellectual Property Committee. The department created an Intellectual Property Committee to make recommendations to the department's executive director or designee concerning intellectual property to be protected, appropriate license fees, and circumstances in which license fees should be waived. This committee was recently disbanded. Amendments to §22.22 give the authority previously held by this committee to the executive director or designee.

Amendments have been made to §22.22 to improve clarity and grammar. The amendments provide that a person must, rather than may, submit a written request for a license. In order to expeditiously process requests, the amendments require a request to be sent to the person authorized to approve it, namely the district engineer, division director, or office director with jurisdiction over the intellectual property, rather than the department's General Services Division. Additionally, the requirement that a request for a license include the number of copies or licenses requested has been deleted, since the description of the intellectual property requested and the purpose for which it will be used will include that information.

In order to provide the department with the ability to determine an appropriate license fee for various types of intellectual property and categories of licensees, the amendments to §22.22 provide that fee determinations in licenses of intellectual property will be made on a case by case basis by the district engineer, division director, or office director with jurisdiction over the intellectual property, rather than with a fee schedule. In order to prescribe the circumstances in which a waiver or reduction of license fees furthers the goals and missions of the department and results in a net benefit to the state, as required by Transportation Code, §201.205, the amendments to §22.22 prescribe criteria the department will consider in determining whether a waiver or reduction should be made. Those criteria include whether the licensee is a governmental entity, whether the intellectual property will be used for a commercial purpose, whether the department is the primary beneficiary of the licensee's use of the intellectual property, and whether the department has an interest in maximizing the distribution and use of the intellectual property. If the department is the primary beneficiary and has an interest in maximizing the distribution and use of the intellectual property, a license generally will further the goals and missions of the department and be a benefit to the state. A license to a governmental entity is more likely to result in a benefit to the state, as opposed to a license to use intellectual property for a commercial purpose.

In order to streamline licensing procedures for generally available intellectual property, while protecting the department's interest in that property, the amendments authorize licensure to be made through written and unwritten permission to use intellectual property, rather than a formal license agreement, when the intellectual property involved is downloaded from the department's Internet web site or when the intellectual property is not registered with the U.S. Copyright Office or U.S. Patent and Trademark Office, and is generally available to the public, such as articles, maps, plans, and photographs. Intellectual property may only be downloaded from the department's Internet site by indicating assent to the terms and conditions set out on the site. The appropriate notice of copyright, trademark, or other notice of the department's ownership must be inserted in or otherwise included with the intellectual property. The amendments require any written statement used by the department to include permission to use the intellectual property and any restrictions on the licensee's use of the intellectual property.

In order to comply with the requirements of the Public Information Act, Government Code, Chapter 552, and attorney general decisions, the amendments require any requests for the licensure of intellectual property that is determined to be public information to be processed in accordance with the department's public information rules, but require a license agreement or permission to use prior to any release of the intellectual property. The Attorney General has determined that while certain intellectual property is considered public information under the Public Information Act, that act does not prohibit a governmental body from protecting its intellectual property by entering into licensing or other use agreements.

COMMENTS

No comments were received regarding 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, and more specifically, Transportation Code, §201.205, which authorizes the department to adopt rules concerning the protection and use of department intellectual property.

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 January 31, 2002.

TRD-200200605

Richard D. Monroe

General Counsel

Texas Department of Transportation

Effective date: February 20, 2002

Proposal publication date: November 9, 2001

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