Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 31.
PUBLIC TRANSPORTATION
The Texas Department of Transportation (department) adopts amendments
to §§31.1, 31.3, 31.11, 31.13, 31.16, 31.21, 31.22, 31.26, 31.31,
and 31.36, 31.42 - 31.50, 31.55, 31.57, 31.60 - 31.63, and 31.65, and new §31.40
and §31.41, concerning public transportation. Section 31.31 is adopted
with changes to the proposed text as published in the January 3, 2003, issue
of the
Texas Register
(28 TexReg 38). Sections
31.1, 31.3, 31.11, 31.13, 31.16, 31.21, 31.22, 31.26, 31.36, 31.40 - 31.50,
31.55, 31.57, 31.60 - 31.63, and 31.65 are adopted without changes to the
proposed text as published in the January 3, 2003, issue of the
Texas Register
and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS AND NEW SECTIONS
In recent months the department has drafted a manual to assist with the
administration of public transportation functions carried out by the department
and the entities to which it grants funds.
The amendments include the addition of the allocation formula for federal
Section 5307 funds and revisions of the allocation formula for federal Section
5303 funds. Changes in language are made to enhance readability and clarity,
to improve grammar, to update citation forms, and to be more consistent with
the Code Construction Act, Government Code, Chapter 311.
Section 31.3 is amended to add one new definition, to eliminate a definition
no longer used in Chapter 31, to clarify and expand existing definitions,
and to conform definitions more closely to existing practice, federal standards,
and state law.
Former §31.3(1) is deleted to eliminate the definition of "accident,"
which is no longer used in Chapter 31. "Incident" will be used in place of
"accident."
Renumbered §31.3(23) is amended to redefine "incident" to conform
to federal standards.
Renumbered §31.3(25) is amended to redefine "injury" to conform to
federal standards.
Renumbered §31.3(26) is amended to redefine "investigation" to reflect
that it is used only in relation to rail accidents.
Renumbered §31.3(35) is amended to remove unnecessary language and
references to terms that are not used in the rules.
New §31.3(40) is added to define "property damage," a component in
the definition of "incident." The new definition conforms to comparable federal
terminology.
Section 31.11(d) is added to establish that the Texas Transportation Commission
(commission) will reallocate funds that are returned to it and that the reallocation
will be made under the discretionary program. This avoids the possibility
of unused funding.
Section 31.11(e) is amended to clarify which of the department's organizational
units should receive an application for funds.
Section 31.13(c) is amended to provide that applications for funds should
be submitted to the districts rather than to the Public Transportation Division.
Section 31.16(c)(3)(A) and (B) are added to provide additional detail explaining
the criteria used in allocating Section 5309 funds for replacing vehicles
and for replacing other equipment. The added information conforms to current
department practice and is included to provide the public with additional
information.
Former §31.21(c)(1) is deleted because this function is now handled
by the department's Transportation Planning and Programming Division in conjunction
with applications for other transportation funding.
Renumbered §31.21(c)(1)(B) and (C) are amended to parallel federal
requirements more closely.
Renumbered §31.21(c)(2) is amended to provide additional information
about the manner in which the state's Section 5303 funding application is
submitted to the Federal Transit Administration.
Section 31.22(c) is amended to permit local share requirements to be met
with in-kind contributions. This will provide local entities with greater
flexibility in meeting the local share requirements.
Section 31.22(d) is added to provide additional information about the manner
in which the state's Section 5313 funding application is submitted to the
Federal Transit Administration.
Section 31.26 is amended to address the department's role in allocating
Section 5307 funds and the manner in which those funds are allocated to designated
recipients.
Section 31.26(c) is added to explain the function of the added subsections.
Section 31.26(d) is added to explain the department's role in allocating
Section 5307 funds.
Section 31.26(e) is added to set forth the formula that the department
will use in allocating Section 5307 funds to designated recipients. This addition
provides additional detail that is consistent with the department's preexisting
practices.
Section 31.31(c)(4) is amended by deleting the requirement that contracts
for Section 5310 funds include performance goals and management objectives.
Experience has shown that these items have not been useful to the department
or to subrecipients.
Section 31.31(j)(1) is amended to provide further detail and explanation
of the planning and development process.
Section 31.36(b)(3) and (g)(4) is amended to delete the requirement for
Section 5311 recipients to establish performance goals and management objectives.
Experience has shown that these items have not been useful to the department
or to subrecipients.
New §31.40 and §31.41 are added to clarify that all recipients
of state and federal funds must adhere to federal requirements for public
involvement and reliance on private mass transportation companies. These requirements
have always applied to recipients of federal funds. Applying them to recipients
of state funds will ensure that all designated recipients are treated equally.
Section 31.43(c) is amended to clarify the organizational unit in the department
to which notice must be given. It is also amended to adjust the threshold
amount for purchases so that it will correspond to the comparable state requirement.
Section 31.44(b) and (c) is amended to adjust the threshold amount for
purchases so that it will correspond to the comparable state requirement.
Section 31.44(b)(1)(A) is also amended to clarify that requests for proposals
are covered, in addition to competitive bids.
Subsection (c)(2) is amended to add that the department will provide subrecipients
with assistance in generating documentation for procurements.
Section 31.48 is amended throughout to substitute "incident" for "accident."
This change conforms to current federal and transit industry standards.
Section 31.48(b)(5) is also amended to eliminate the requirement of monthly
operations reports. Experience has shown that quarterly reports are adequate,
while monthly reports are unnecessarily burdensome.
Section 31.48(b)(5)(A)(iv) and (b)(5)(B)(iv) is amended to substitute a
more complete explanation for the term "road calls." This change clarifies
the coverage of these sections without significantly changing that coverage.
Section 31.48(b)(5)(B)(i) and (ii) is amended to use the term operating
expense in place of the term cost to conform to the federal standard for this
reporting requirement.
Former §31.48(b)(6) is deleted to eliminate the requirement that all
transit operators develop annual performance goals and management objectives.
Experience has shown that these items have not been useful to the department
or to subrecipients.
Section 31.48(c)(2)(B) is amended to name the federal oversight agency
that is now responsible for drug and alcohol compliance. In addition, a reference
to the department's monitoring of subrecipients is removed because the department
is not charged with this responsibility.
Section 31.48(d)(1) and (2) is amended to permit the department to terminate
funding contracts if minor deficiencies are not corrected after reasonable
notice. If a contract is terminated for uncorrected minor deficiencies, the
subrecipient will not be eligible for financial assistance for two years.
The amendment also replaces the cumbersome contested case process with a less
formal appeal to the commission. These changes will enhance the responsiveness
and flexibility of the department's response to contract violations while
continuing to ensure that subrecipients have reasonable opportunities to correct
problems before definitive action is taken.
Section 31.50(c) is amended to establish a date for data to be provided
to the department regarding transit inventory and to provide additional detail
about the kind of data that must be provided. This amendment will reduce confusion
over the nature of the reporting requirement.
Section 31.55(b) is amended to require the recording of liens on the titles
of property purchased with state or federal funds. This amendment protects
the public investment in public transportation and implements federal and
state requirements regarding the use of public funds.
Section 31.61(a) is amended to establish a deadline for submitting a system
safety program plan to the department.
Section 31.61(b) is amended to allow a transit agency to notify the department
of rail accidents and unacceptable hazardous conditions by electronic mail.
This will provide transit agencies with more flexibility in reporting.
Section 31.61(c) is amended to establish a deadline for a transit agency
to submit audit forms to the department.
Section 31.63(a) and (b) are deleted because the confidentiality of information
is governed exclusively by the Public Information Act, Government Code, Chapter
552.
Section 31.65 is amended to establish that the deadline for submitting
the security system program portion of the safety plan is the same as the
deadline for submitting the rest of the system safety program plan. This will
facilitate review of the plan by the department.
COMMENTS
No oral or written comments were received on the proposed amendments and
new sections. However, the department is making two nonsubstantive corrections.
Section 31.31(g)(1)(B)(i) is amended to reference the United States Census
Bureau instead of the state data center. The state data center does not report
the level of detail necessary for calculating allocations in this program.
Section 31.31(j)(1)(F) and (G) are amended to correct the names of the
Transportation Improvement Program and the Statewide Transportation Improvement
Program.
Subchapter A. GENERAL
43 TAC §31.1, §31.3
STATUTORY AUTHORITY: Transportation Code, §§201.101,
455.005, and 456.026.
CROSS REFERENCE TO STATUTE: Transportation Code, Chapters 201, 455, and
456.
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 March 28, 2003.
TRD-200302068
Richard D. Monroe
General Counsel
Texas Department of Transportation
Effective date: April 17, 2003
Proposal publication date: January 3, 2003
For further information, please call: (512) 463-8630
43 TAC §31.11, §31.13
STATUTORY AUTHORITY: Transportation Code, §§201.101,
455.005, and 456.026.
CROSS REFERENCE TO STATUTE: Transportation Code, Chapters 201, 455, and
456.
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 March 28, 2003.
TRD-200302069
Richard D. Monroe
General Counsel
Texas Department of Transportation
Effective date: April 17, 2003
Proposal publication date: January 3, 2003
For further information, please call: (512) 463-8630
43 TAC §§31.16, 31.21, 31.22, 31.26, 31.31, 31.36
STATUTORY AUTHORITY: Transportation Code, §§201.101,
455.005, and 456.026.
CROSS REFERENCE TO STATUTE: Transportation Code, Chapters 201, 455, and
456.
§31.31.Section 5310 Grant Program.
(a)
Purpose. The Federal Transit Act, codified at 49 USC §5310(a)(2),
authorizes the Secretary of the United States Department of Transportation
to make capital grants or loans for the provision of transportation services
meeting the special needs of the elderly and persons with disabilities. The
department has been designated by the governor to administer the Section 5310
program.
(b)
Goal and objectives. The department's goal in administering
the Section 5310 program is to promote the availability of professional, cost-effective,
efficient, and coordinated passenger transportation services to the elderly
and persons with disabilities using the most efficient combination of financial
and other resources. To achieve this goal, the objectives of the department
are to:
(1)
promote the development and maintenance of a network of
transportation services for the elderly and persons with disabilities throughout
the state, in partnership with local stakeholders;
(2)
promote and encourage local participation in decision-making;
(3)
fully integrate the Section 5310 program with other federal,
state, and local resources and programs that are designed to serve similar
populations;
(4)
improve the efficiency, effectiveness, and safety of Section
5310 transit systems through the provision of technical assistance and the
establishment of performance goals and management objectives; and
(5)
include private sector operators in the overall plan to
provide transportation services for the elderly and persons with disabilities.
(c)
Department role. The department acts as the designated
recipient for all Section 5310 funds appropriated to the state. As the administering
agency, the department will:
(1)
develop application materials and disseminate information
to prospective applicants and other interested parties;
(2)
develop evaluation criteria and select projects for funding,
with input from local entities and local individuals in accordance with the
standards set forth in subsection (j) of this section;
(3)
prepare the state's annual program of projects and funding
application and submit that material to the FTA for approval;
(4)
negotiate and execute contracts with local Section 5310
recipients;
(5)
prepare requests for federal reimbursement and process
payment requests from Section 5310 recipients;
(6)
monitor and evaluate the progress of ongoing transportation
operations, including compliance with federal regulations and coordination
of services; and
(7)
provide technical assistance to Section 5310 recipients
to aid them in improving and coordinating transit services.
(d)
Eligible recipients. Existing rural and urban transit districts
and metropolitan transit authorities will be the primary recipients of funds
from this program for their respective service areas. For those areas not
covered by transit providers, or in cases where the existing provider is not
willing and able to provide the transportation, the director may choose an
alternative primary recipient. Private, nonprofit organizations and associations
are eligible to receive Section 5310 funds as secondary recipients. Local
public bodies approved by the state to coordinate transportation services,
as selected in subsection (i) of this section, and any public body that certifies
to the selecting entity that nonprofit organizations in the area are not readily
available to carry out the services, may also receive Section 5310 funds as
secondary recipients. Examples of local public bodies approved by the state
to coordinate transportation services are a county agency on aging and a public
transit provider that the state has identified as the lead agency to coordinate
transportation services funded by multiple federal or state human service
programs.
(e)
Eligible assistance categories. The following categories
of expenses are eligible for federal reimbursement under the Section 5310
program.
(1)
State administrative expenses. The department will use
up to 10% of the annual federal program apportionment to defray its expenses
incurred for the administration of the Section 5310 program. The department
must provide a 20% match for any federal administrative monies.
(2)
Capital expenses.
(A)
Eligible recipients, as defined in subsection (d) of this
section, may use program funds for the purchase of capital items. Eligible
items include, but are not limited to:
(i)
buses;
(ii)
vans or other paratransit vehicles;
(iii)
radios and communication equipment;
(iv)
vehicle shelters;
(v)
wheelchair lifts and restraints;
(vi)
vehicle rehabilitation, remanufacture, or overhaul, if
done with the concurrence of the department;
(vii)
microcomputer hardware and software;
(viii)
initial component installation costs;
(ix)
vehicle procurement, testing, inspection, and acceptance
costs;
(x)
vehicle extended warranties that do not exceed industry
standards;
(xi)
the lease of equipment, provided that the local recipient,
with the concurrence of the department, determines a lease is more cost effective
than the purchase of equipment after considering management efficiency, availability
of equipment, staffing capabilities and guidelines on capital leases as contained
in 49 CFR Part 639;
(xii)
the acquisition of transportation services under a contract,
lease, or other arrangement;
(xiii)
the acquisition of preventive maintenance services and
vehicle parts associated with preventive maintenance services, with the concurrence
of the department;
(xiv)
transit-related intelligent transportation systems; and
(xv)
the introduction of new technology, through innovative
and improved products, into mass transportation.
(B)
When a subrecipient chooses to include the acquisition
of transportation services under a contract, lease or other arrangement, both
capital and operating costs associated with the contracted services are eligible
expenses. User-side subsidies are considered one form of eligible arrangement.
The department, as the recipient, has the option to decide whether to provide
funding for these acquired services. Funds may be requested for contracted
services covering a period of more than one year.
(C)
Based on funding availability, federal funds may be used
to defray up to 80% of the cost of eligible capital expenditures. The federal
share may increase to up to 90% for incremental costs related to compliance
with the Clean Air Act in areas of air quality non-attainment or with the
Americans with Disabilities Act of 1990, with concurrence from the department.
Eligibility standards for the higher federal share are defined in FTA Circular
9070.1E, or its latest version. The local subrecipient must provide a 20%
or 10% cash match at the time the equipment is delivered or the services are
received.
(f)
Local share requirements. The local share required under
subsection (e)(2) of this section must be provided from sources other than
federal funds except when authorized by federal law.
(g)
Funding distribution.
(1)
Formula basis. The balance of the annual Section 5310 federal
apportionment, after the state administrative expenses described in subsection
(e)(1) of this section are set aside, will be allocated to districts on a
formula basis as follows.
(A)
25% of the total available funds will be distributed equally
among the districts.
(B)
75% of the total available funds will be allocated as follows.
(i)
The population of the elderly and persons with disabilities
in each district will be calculated by using the latest census figures for
counties available from the United States Census Bureau.
(ii)
Each district's subtotal of the population of the elderly
and persons with disabilities will then be divided by the state total of that
population to determine the district's formula allocation.
(2)
Allocation.
(A)
Preliminary formula allocations for the next fiscal year
will be announced by the department no later than January 1.
(B)
Final allocations will be announced within 30 days of the
federal apportionment to the state.
(C)
Upon completion of the project selection procedures described
in subsection (i) of this section, if a district does not need the entire
allocation, the commission or the executive director will distribute the balance
to the remaining districts in accordance with paragraph (1)(B) of this subsection
or to individual projects identified in subsection (i)(1) of this section.
(h)
Application requirements. A prospective applicant must
submit an application for Section 5310 grant funds to the appropriate district
office on the forms and at the time specified by the department. The application
must document the need and demand for passenger transportation services for
the elderly and persons with disabilities.
(i)
Project selection. The district office will consult with
all local parties, including any existing MPOs. Up to 10% of a district's
annual allocation or suballocation may be reserved for contingencies or unidentified
projects in keeping with the Category C allowances in the program of projects
that is described in subsection (k) of this section. Project selection will
be as follows.
(1)
The district office will select projects in priority order
as described in subsection (j) of this section, including up to five reserve
projects should additional funding be made available, based on the following
criteria:
(A)
the demonstrated need for capital equipment, examples of
which include, but are not limited to, a needs assessment that documents the
demand for new services, a vehicle inventory that establishes the need for
replacement of older equipment, dispatcher logs that document requests for
service that cannot be met with existing equipment, and purchase of service
contracts that substantiate the need for additional vehicles;
(B)
the applicant's financial and managerial capability to
maintain and operate the equipment, examples of which include, but are not
limited to, audited financial statements and review letters from grantor agencies;
(C)
the applicant's efforts to coordinate services and related
activities with other local entities, examples of which include, but are not
limited to, contracts that outline purchase of service agreements, shared
maintenance or dispatching functions, and joint training initiatives; and
(D)
evidence of local support for the proposal, examples of
which include, but are not limited to, resolutions by local governing bodies
and endorsement letters from other organizations or individuals.
(2)
Upon receipt of the applications selected for funding from
the district offices, the director, or the director's designee, will review
all funding requests for completeness and compliance with all statutory and
program administrative requirements. The department will negotiate a contract
with the selected local entities and organizations to implement the projects
selected for funding.
(j)
Transportation planning and development for the elderly
and persons with disabilities.
(1)
Planning and development process. In urbanized and nonurbanized
areas each district will establish, after consultation with local stakeholders,
a local planning and development process. The local planning and development
process will result in a three-year transit development plan, updated annually,
that will demonstrate and include:
(A)
a process for public involvement;
(B)
the identification and evaluation of service delivery resources;
(C)
the promotion of a transportation network;
(D)
the evaluation of the efficiency and effectiveness of the
transportation network;
(E)
the creation of the district-wide program of transit projects;
(F)
recommendations for projects to be included in local Transportation
Improvement Programs; and
(G)
the selection of projects in nonurbanized areas for inclusion
into the Statewide Transportation Improvement Program.
(2)
Annual report. Each district will submit an annual report
to the Public Transportation Division no later than October 1st. The October
1st report will include an annual program of projects prioritizing projects
selected for funding and information related to the project selection process.
(k)
Program of projects. Upon completion of the evaluation
and selection of projects, the department will prepare a program of projects
as described in FTA Circular 9070.1E, or its latest version. Projects listed
in category A of the program of projects are those that have met all statutory
and administrative requirements for project approval and for which contracts
will be issued upon receipt of federal grant approval. A selected project
that is not yet complete will be listed in category B and a contract will
not be issued until all requirements are met. Up to 10% of the annual federal
apportionment may be listed as a program reserve in category C. Projects advance
to the next category in the program until all listings are in category A.
(l)
Vehicle leasing. Vehicles acquired under the Section 5310
program may be leased to other entities such as local public bodies or agencies,
other private non-profit agencies, or private for-profit operators. The lessee
shall operate the vehicles on behalf of the Section 5310 recipient and provide
the transportation services as described in the original grant application.
(m)
Meal delivery. Section 5310 program subrecipients may coordinate
and assist in providing meal delivery services for homebound persons on a
regular basis if meal delivery services do not conflict with the provision
of transit services or result in a reduction of service to transit passengers.
Section 5310 funds shall not be used to purchase special vehicles to be used
solely for meal delivery or to purchase specialized equipment such as racks
or heating or refrigeration units related to meal delivery. Vehicles shall
not be altered to accommodate meal deliveries.
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 March 28, 2003.
TRD-200302070
Richard D. Monroe
General Counsel
Texas Department of Transportation
Effective date: April 17, 2003
Proposal publication date: January 3, 2003
For further information, please call: (512) 463-8630
43 TAC §§31.40 - 31.49
STATUTORY AUTHORITY: Transportation Code, §§201.101,
455.005, and 456.026.
CROSS REFERENCE TO STATUTE: Transportation Code, Chapters 201, 455, and
456.
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 March 28, 2003.
TRD-200302071
Richard D. Monroe
General Counsel
Texas Department of Transportation
Effective date: April 17, 2003
Proposal publication date: January 3, 2003
For further information, please call: (512) 463-8630
Subchapter B. STATE PROGRAMS
Subchapter C. FEDERAL PROGRAMS
Subchapter D. PROGRAM ADMINISTRATION
Subchapter E. PROPERTY MANAGEMENT STANDARDS