43 TAC §§15.150, 15.151, 15.154, 15.155
The Texas Department of Transportation (department) proposes
amendments to §15.150 and §15.151 and new §15.154 and §15.155,
concerning the department’s acquisition, construction, maintenance,
and operation of rail facilities.
EXPLANATION OF PROPOSED AMENDMENTS AND NEW SECTIONS
Transportation Code, Chapter 91, authorizes the department to acquire,
finance, construct, maintain, and operate a passenger or freight rail facility
or system, including the acquisition of abandoned rail facilities.
Transportation Code, §91.051, provides that unless otherwise provided
by Subchapter C of that chapter, a contract made by the department for the
construction, maintenance, or operation of a rail facility must be let by
a competitive bidding procedure in which the contract is awarded to the lowest
responsible bidder that complies with the department’s requirements.
Transportation Code, §91.102, authorizes the department to lease all
or part of a rail facility or system to a rail operator, and to contract with
a rail operator for the use or operation of all or part of a rail facility
or system. Transportation Code, §91.052, authorizes the department to
enter into an agreement with a public entity, including a political subdivision
of this state, to permit the entity, independently or jointly with the department,
to acquire, construct, maintain, or operate a rail facility or system.
Section 15.150 is amended to reflect that the proposed amendments and new
sections prescribe policies and procedures for the awarding of contracts for
the construction or maintenance of rail facilities, and the leasing of rail
facilities acquired or constructed by the department to public and private
entities.
Section 15.151 is amended to define executive director and to define those
public entities authorized to lease department rail facilities.
New §15.154 provides that the department will comply with the policies
and procedures prescribed for highway improvement contracts in the qualification
of bidders, issuance of proposals and receipt of bids, and award and execution
of a contract for the construction or maintenance of a rail facility. These
procedures have proven over time to be an effective means of awarding construction
and maintenance contracts. Moreover, the use of existing procedures is anticipated
to make the process more efficient, thereby resulting in cost savings to the
state.
In order to ensure the award of a contract for a particular project is
handled in the most efficient manner, §15.154 provides that the name
and address of the individual to whom bids shall be submitted will be provided
when a project is advertised. As authorized by law, §15.154 also provides
that the department will prescribe bidder responsibility requirements.
New §15.155 provides that the department may lease a rail facility
acquired or constructed by the department to a public entity. In accordance
with Transportation Code, §91.102, which requires the department to encourage
to the maximum extent practical the participation of private enterprise in
the operation of rail facilities, §15.155 requires a public entity to
contract for the operation of rail facilities leased by the public entity
under an agreement with the department. As required by law, the lease agreement
must provide for the department’s monitoring of the rail operator’s
service and performance.
In order to obtain the contractual relationship that is in the best interest
of the state, and to comply with the intent of Transportation Code, Chapter
91, §15.155 provides that the department will use a competitive process
to obtain private rail operators for rail facilities acquired or constructed
by the department. Section 15.155 also provides that in evaluating proposals
submitted by private rail operators, the department will consider, among other
criteria, the qualifications, experience, and capability of the proposer to
operate the rail facility. In order to ensure that rail service is provided
where needed and to provide for the development of transportation and commerce, §15.155
also provides that the department will consider, when evaluating proposals
submitted by private rail operators, a proposer’s plans for servicing
markets, improving service and adding additional markets, and maintaining
and improving rail facilities that are the subject of a lease agreement.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for each of
the first five years the amendments and new sections as proposed are in effect,
there will be no fiscal implications for state government as a result of enforcing
or administering the amendments and new sections. The amendments and new sections
will be administered with existing department staff. The department anticipates
that there will be fiscal implications for local governments as a result of
leasing department rail facilities. Those costs cannot be quantified with
any certainty, as it will depend on the number of rail facilities that are
leased by the department to local governmental entities and the procurement
process utilized by a local governmental entity when contracting for the operation
of a rail facility. There are no anticipated economic costs for persons required
to comply with the amendments and new sections as proposed.
James L. Randall, P.E., Director, Transportation Planning and Programming
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 and new sections.
PUBLIC BENEFIT
Mr. Randall has also determined that for each of the first five years the
amendments and new sections are in effect, the public benefit anticipated
as a result of enforcing or administering the amendments and new sections
will be the provision of needed rail service in this state, thereby facilitating
economic and business development and the development and expansion of transportation
and commerce. There will be no adverse economic effect on small businesses.
PUBLIC HEARING
Pursuant to the Administrative Procedure Act, Government Code, Chapter
2001, the Texas Department of Transportation will conduct a public hearing
to receive comments concerning the proposed rules. The public hearing will
be held at 9:00 a.m. on March 16, 2004, in the first floor hearing room
of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin,
Texas, 78701, and will be conducted in accordance with the procedures specified
in 43 TAC §1.5. Those desiring to make comments or presentations may
register starting at 8:30 a.m. Any interested persons may appear and
offer comments, either orally or in writing; however, questioning of those
making presentations will be reserved exclusively to the presiding officer
as may be necessary to ensure a complete record. While any person with pertinent
comments will be granted an opportunity to present them during the course
of the hearing, the presiding officer reserves the right to restrict testimony
in terms of time and repetitive content. Organizations, associations, or groups
are encouraged to present their commonly held views and identical or similar
comments through a representative member when possible. Comments on the proposed
text should include appropriate citations to sections, subsections, paragraphs,
etc. for proper reference. Any suggestions or requests for alternative language
or other revisions to the proposed text should be submitted in written form.
Presentations must remain pertinent to the issues being discussed. A person
may not assign a portion of his or her time to another speaker. Persons with
disabilities who plan to attend this meeting and who may need auxiliary aids
or services such as interpreters for persons who are deaf or hearing impaired,
readers, large print or Braille, are requested to contact Randall Dillard,
Director, Public Information Office, 125 East 11th Street, Austin, Texas 78701-2483,
512/463-8588 at least two working days prior to the hearing so that appropriate
services can be provided.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments and new sections may be submitted
to James L. Randall, P.E., Director, Transportation Planning and Programming
Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for
receipt of comments is 5:00 p.m. on April 5, 2004.
STATUTORY AUTHORITY: The amendments and new sections are proposed
under Transportation Code, §201.101, which provides the Texas Transportation
Commission (commission) with the authority to establish rules for the conduct
of the work of the department, and more specifically, Transportation Code, §91.003,
which authorizes the commission to adopt rules and the department to adopt
procedures and prescribe forms necessary to implement Chapter 91.
CROSS REFERENCE TO STATUTE: Transportation Code, Chapter 91.
§15.150.Purpose.
Transportation Code, Chapter 91, authorizes the Texas Department of
Transportation to acquire, finance, construct, maintain, and operate a passenger
or freight rail facility or system, including the acquisition of abandoned
rail facilities. [
House Bill 2, 78th Legislature, Third Called Session,
2003, directs the Texas Transportation Commission to adopt rules governing
the disbursement of funds for the acquisition of abandoned rail facilities.
] In establishing criteria for the Texas Department of Transportation’s
acquisition of abandoned rail facilities, the Texas Transportation Commission
is required to consider the local and regional economic benefit realized from
the disbursement of funds in comparison to the amount of the disbursement.
This subchapter prescribes policies and procedures for the Texas Department
of Transportation’s acquisition of abandoned rail facilities
, the
awarding of contracts for the construction or maintenance of rail facilities,
and the leasing of rail facilities acquired or constructed by the Texas Department
of Transportation to public and private entities
.
§15.151.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Abandoned rail facilities--Rail facilities for which:
(A)
a notice of intent to abandon or discontinue service has
been filed with the Surface Transportation Board under 49 C.F.R. §1152.20;
(B)
an application for abandonment or discontinuance of service
has been filed with the Surface Transportation Board under 49 C.F.R. Part
1152; or
(C)
abandonment or discontinuance of service has been authorized
by the Surface Transportation Board.
(2)
Commission--The Texas Transportation Commission.
(3)
Department--The Texas Department of Transportation.
(4)
District--A rural rail transportation district created
under Texas Civil Statutes, Article 6550c.
(5)
Executive Director--The executive
director of the department or the executive director’s designee not
below the level of division director.
(6)
Public entity--A governmental
entity, including a political subdivision of this state, that is authorized
by law to operate rail facilities.
(7)
[
(5)
] Rail facility--Real or personal
property, or any interest in that property, that is determined to be necessary
or convenient for the provision of a freight or passenger rail facility or
system, including commuter rail, intercity rail, and high-speed rail.
(8)
[
(6)
] Service performed on the rail
line--the number of trains operated on the line and their frequency, and the
total tonnage and carloads on the line.
§15.154.Construction and Maintenance Contracts.
(a)
Transportation Code, §91.051, provides that unless
otherwise provided by Subchapter C of that chapter, a contract made by the
department for the construction, maintenance, or operation of a rail facility
must be let by a competitive bidding procedure in which the contract is awarded
to the lowest responsible bidder who complies with the department’s
requirements.
(b)
The department shall comply with the policies and procedures
prescribed in Chapter 9, Subchapter B of this title (relating to Highway Improvement
Contracts) in the qualification of bidders, issuance of proposals and receipt
of bids, and award and execution of a contract for the construction or maintenance
of a rail facility.
(c)
The name and address of the individual to whom bids shall
be submitted will be provided when a project is advertised. That individual
will be responsible for opening and reading bids in accordance with the policies
and procedures in §9.15 of this title (relating to Acceptance, Rejection,
and Reading of Proposals).
(d)
Bidder responsibility requirements shall be provided by
the department with the proposal form issued for a project.
(e)
A construction or maintenance contract may provide for
partial payments and retainage in the amounts provided in the contract.
(f)
Architectural, engineering, or surveying services that
are needed for the construction or maintenance of a rail facility shall be
acquired in accordance with the requirements of Government Code, Chapter 2254,
and Chapter 9, Subchapter C of this title (relating to Contracting for Architectural,
Engineering, and Surveying Services), except that the administrative qualification
requirements of §9.42 of this title (relating to Administrative Qualification)
shall not apply if the department does not have a precertification category
for the work to be performed.
§15.155.Leasing of Rail Facilities.
(a)
Transportation Code, §91.102, authorizes the department
to lease all or part of a rail facility or system to a rail operator and to
contract with a rail operator for the use or operation of all or part of a
rail facility or system. Transportation Code, §91.052, authorizes the
department to enter into an agreement with a public entity, including a political
subdivision of this state, to permit the entity, independently or jointly
with the department, to acquire, construct, maintain, or operate a rail facility
or system.
(b)
The department may lease a rail facility acquired or constructed
by the department to a public entity. The public entity shall comply with
all applicable laws when contracting for the operation of the rail facility.
The lease agreement shall provide for the department’s monitoring of
the rail operator’s service and performance.
(c)
The department will use a competitive process to obtain
private rail operators for rail facilities acquired or constructed by the
department. The department will publish a notice in the
Texas Register
and in a newspaper of general circulation in the area
in which the rail facility is located, requesting proposals to lease and operate
a department rail facility.
(d)
In evaluating proposals submitted in response to a request
under subsection (c) of this section, the department will consider the:
(1)
qualifications and capability of the proposer to operate
the rail facility;
(2)
proposer’s experience in constructing and maintaining
rail facilities;
(3)
financial capability of the proposer to operate and maintain
the rail facility;
(4)
relative effectiveness of the proposer’s management
team and staff;
(5)
extent to which the proposal minimizes the department’s
financial obligations in acquiring or maintaining the rail facility;
(6)
proposer’s plan for maintaining and improving equipment,
trackwork, and right of way, including the planned schedule for carrying out
the maintenance and improvements and planned funding sources; and
(7)
proposer’s planned operating rules and procedures
for servicing markets served by the rail facility, including plans and proposed
schedules for improving service and adding additional markets.
(e)
The department will rank all proposals submitted in response
to a request under subsection (c) of this section using the criteria set out
in the request for proposals. The criteria will, at a minimum, include the
factors listed in subsection (d) of this section. The department will negotiate
a lease agreement with the highest ranked proposer.
(f)
If an agreement satisfactory to the department cannot be
negotiated with the proposer, the department will formally end negotiations
with that proposer. The department may reject all proposals or proceed to
the next highest ranked proposal and attempt to negotiate an agreement with
that proposer.
(g)
The executive director will submit to the commission a
summary of the final terms of a lease agreement successfully negotiated with
a public or private entity under this section. The commission may authorize
the executive director to execute the agreement if it finds that the agreement
is in the best interest of the state and furthers state, regional, and local
transportation plans, programs, policies, and goals.
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 February 20, 2004.
TRD-200401185
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: April 4, 2004
For further information, please call: (512) 463-8630