43 TAC §§15.70 - 15.76
The Texas Department of Transportation (department) proposes
amendments to §§15.70 - 15.76, concerning international bridges.
EXPLANATION OF PROPOSED AMENDMENTS
The proposed amendments are necessary to implement the provisions of House
Bill 1653, 78th Legislature, Regular Session, 2003; add, revise or eliminate
certain terms and definitions; update statutory references; clarify existing
information; modify requirements for public involvement; and allow for a comparison
of competing applications.
The amendments to §15.70 incorporate a new provision enacted by House
Bill 1653, which amended Transportation Code, §201.612, to permit an
entity that is authorized to construct a new international bridge to enter
into the approval process with the Texas Transportation Commission (commission)
and the United States simultaneously. This represents a change from the existing
process whereby an applicant obtained commission approval prior to requesting
approval from the United States. Section 15.70 is further amended to update
relevant statutory references.
Section 15.71 is amended to add the definitions of a competing bridge applicant
and a district office, change the term "study sector" to "study area," and
remove the definition of the Texas-Mexico Toll Bridge Study. The definition
of competing bridge applicant is necessary to address the situation where
two or more entities may be interested in constructing a new international
bridge in the same area. The definition of district office is necessary to
properly identify the specific location where applicants may obtain information.
In this section, and throughout the amended rules, the term "study sector"
is being replaced by the term "study area" in order to bring the application
process up to current transportation planning analysis methods. Similarly,
the definition of, and all references to, the Texas-Mexico Toll Bridge Study
(Study) are being removed because it is no longer used as a basis for analyzing
international bridges.
The first sentence of §15.72 is being removed as it is duplicative
of a statement found in §15.70. The amendments to this section also include
additional language to assist potential applicants with information-gathering
related to the application process by directing them to their local department
district office and the Transportation Planning and Programming Division.
The amendments to §15.73 set forth the process for addressing competing
applications, clarify the requirements related to environmental documentation
and public involvement, establish new guidelines for notification of public
officials, and remove all references to the Study and sector as previously
described.
Section 15.73(3)(A) is amended to clarify that an applicant must comply
with the department's administrative rules pertaining to Environmental Policy
and must obtain all environmental approvals required for the project. These
changes are necessary to address confusion regarding the type of environmental
documentation that is required for international bridge projects and to ensure
consistency in the environmental review process.
Section 15.73(3)(B) has been amended to align the public involvement requirements
related to international bridge applications with the public involvement requirements
found in the department's administrative rules pertaining to Environmental
Policy. This change is necessary to address confusion regarding the public
involvement process and to ensure that members of the public, competing bridge
applicants, and local officials have adequate notice of the hearing or meeting
and an opportunity to comment on the proposed project or provide information
as appropriate.
In addition, the amendments to paragraph (3)(B) of §15.73 set forth
the information that an applicant must include in the notices of public hearings
and meetings. Specifically, new paragraph (3)(B)(i) requires a statement that
the applicant intends to submit an international bridge application to the
commission. New paragraph (3)(B)(ii) requires a description of the project,
including design and location information. New paragraph (3)(B)(iii) requires
an instruction to competing bridge applicants that they have 60 days from
the date the notice is published to provide the applicant with design, financial,
and social and environmental information on the competing project.
New §15.73(3)(C) requires the applicant to send a copy of the notice
described in §15.73(3)(B) to the county judges and city mayors within
a certain geographic area.
New §15.73(4) is added to set forth the procedures to be followed
when two or more applicants compete for approval of the construction of a
new international bridge in the same study area. The amendments require an
applicant to address the impact of competing projects and demonstrate how
its submittal is superior to the other projects.
New §15.73(4)(A) describes the method by which the applicant will
provide an analysis of its project compared against competing projects. The
amendments require the applicant to analyze its project as a stand-alone project
and then analyze its project against competing projects, demonstrating the
superiority of one project by comparing the impacts on cost benefits, project
viability, design, and social and environmental impacts.
Finally, new §15.73(4)(B) provides that the applicant will not be
required to analyze a competing project if the competing bridge applicant
does not provide data to the applicant necessary to perform the analysis on
a competing project.
Appendix A, which describes the Texas Mexico border sectors identified
in the Study, has been deleted since the Study is no longer used as a basis
for analyzing international bridges.
The amendment to §15.74 removes a reference to an organizational position
no longer used by the department.
The amendments to §15.75 eliminate references to obsolete state agency
titles, and the section is revised to reflect current titles. In addition,
new subsection (b)(4) of §15.75 is added to clarify that the commission,
as part of its analysis of the application, will consider information pertaining
to competing bridges, information timely submitted by competing bridge applicants
as well as any other information provided by the department.
In §15.76, all references to the Study and sector are being removed
as previously described. New subsection (e)(3) of §15.76 is added to
reflect language in Transportation Code, §201.612, and provides that
applications not approved by the commission must be withdrawn from consideration
for approval by the United States.
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 sections as proposed.
Mr. James Randall, Director, Transportation Planning and Programming, 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. Randall has also determined that for each year of the first five years
the sections are in effect, the public benefit anticipated as a result of
enforcing or administering the amendments will be an improved and more effective
international bridge application process. There will be no adverse economic
effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments to §§15.70 - 15.76
may be submitted to James Randall, Director, Transportation Planning and Programming,
Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483.
The deadline for receipt of comments is 5:00 p.m. on July 10, 2006.
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, §201.612,
which authorizes the commission to adopt rules to administer that section.
CROSS REFERENCE TO STATUTE
Transportation Code, §201.612.
§15.70.Purpose.
Transportation Code, §201.612 provides
[
Texas
Civil Statutes, Article 6674v-8, provide
] that a political subdivision
or private entity authorized to construct or finance the construction of a
bridge over the Rio Grande must obtain approval
from
[
of
]
the Texas Transportation Commission
and the United States
[
for the construction of the bridge before requesting approval from the federal
government
] under Subchapter IV, Chapter 11, Title 33, United States
Code
, for the construction of the bridge. Transportation Code, §201.612
directs the department to allow an applicant to concurrently seek approval
from the commission and the United States.
This
subchapter
[
undesignated head
] prescribes the procedures and conditions by which
a political subdivision or private entity may obtain the approval of the commission.
§15.71.Definitions.
The following words and terms, when used in this
subchapter
[
undesignated head
], shall have the following meanings, unless the context
clearly indicates otherwise.
(1)
Applicant--A political subdivision or private entity authorized
by law to construct or finance the construction of a bridge over the Rio Grande.
(2)
Commission--The Texas Transportation Commission.
(3)
Competing bridge applicant--An
applicant whose project will compete for traffic and revenue and may have
social, environmental, traffic congestion, and mobility impact on the study
area.
(4)
[
(3)
] Department--The Texas Department
of Transportation.
(5)
District office--One of the
25 geographical areas, managed by a district engineer, in which the department
conducts its primary work activities.
(6)
[
(4)
] Metropolitan planning organization--An
organization designated in certain urbanized areas to carry out the transportation
planning process as required by Title 23, United States Code, §134.
(7)
[
(5)
] Project--The construction or
the financing of the construction of a bridge over the Rio Grande.
(8)
[
(6)
]
Study area--
[
Study sector--The affected area of the proposed bridge as defined in the Texas
Mexico Toll Bridge Study, Research Report Number 1976;
]
The
[
this
] area
on
[
will encompass
] both sides of the
Texas-Mexico border affected by the proposed bridge.
[
(7)
Texas-Mexico Toll Bridge Study--Research
Report Number 1976, Center for Transportation Research, Bureau of Engineering
Research, The University of Texas at Austin, April 1994; this study may be
obtained by writing Center for Transportation Research Library, 3208 Red River,
Suite 200, Austin, Texas 78705, and paying a reproduction fee.]
§15.72.New Bridge.
[
A political subdivision or private entity that desires to construct
or finance the construction of a bridge over the Rio Grande must obtain approval
from the commission for the construction of the bridge before requesting approval
from the federal government under Subchapter IV, Chapter 11, Title 33, United
States Code.
] To obtain
commission
[
such
] approval
for a project
, the political subdivision or private entity must submit
an application and comply with all requirements and conditions imposed by
this subchapter
[
these sections
].
Prior to submitting
an application to the department, applicants are encouraged to confer with
their local department district office. The applicant should direct questions
regarding the application and approval process, as well as questions relating
to the respective roles and responsibilities of the applicant and the department,
to the Transportation Planning and Programming Division (TPP).
§15.73.Preliminary Studies.
Prior to submitting an application to the department for the approval
of a project, an applicant shall conduct a study of the design, financial
feasibility, and [
the
] social and environmental impact of the project
, including the effect of any competing applications
.
(1)
Design. The applicant shall provide a preliminary design
geometric layout certified by a registered professional engineer to be in
accordance with standards and criteria from appropriate design manuals applicable
at the date of application. The layout must identify:
(A)
horizontal and vertical alignments and cross-slope data
of the proposed structure showing overall structure length, width, spans,
span length, and type of construction, along with dimensions, where applicable,
of:
(i)
lane width;
(ii)
curb width;
(iii)
sidewalks;
(iv)
shoulder width;
(v)
calculated minimum vertical clearance over other roadways
and waterways; and
(vi)
toll booths and miscellaneous appurtenances;
(B)
geometric termini locations along with inspection stations
and queue lanes where applicable;
(C)
the location and preliminary layout of approach roadways
and intersections on both sides of the border with changes necessitated by
the project to existing facilities on both sides of the border; and
(D)
the location and layout of any other accommodation of buildings
or appurtenances deemed necessary by the applicant and any law or regulation
governing the operation and maintenance of port of entry operations.
(2)
Financial feasibility study. An applicant shall conduct
a feasibility study to determine the financial viability of the project. The
study shall include the following information.
(A)
A financial overview of the project, which shall include:
(i)
summary cost estimates for the planning, design, construction,
operation, and maintenance of the project; and
(ii)
a statement of all financing requirements for the project
and sources of all financing.
(B)
A project construction schedule identifying the timing,
amount, and source of all cash required to pay for all construction costs.
(C)
An analysis of the expected financing period of the project,
such period to be the greater of 10 years or the time taken to fully pay any
and all liabilities incurred for the planning, design, construction, operation,
and maintenance of the project plus the time taken to fully pay any and all
liability refunding, renegotiations, conversions, and extensions.
(i)
An applicant that issues or contemplates issuing any form
of liability with a term longer than one year within three years of the date
of application shall consider a portion of that liability as incurred for
the planning, design, construction, operation, and maintenance of the project
unless the applicant demonstrates otherwise to the satisfaction of the commission
in the financial feasibility study. A liability not less than the cost of
construction and not more than the costs of planning, design, and construction
shall be considered in the financial feasibility study as if it had been incurred
directly for the project.
(ii)
The term of any liability amount determined in clause
(i) of this subparagraph shall be the longest term of any liabilities issued
or contemplated by the applicant within three years of the application date
plus the time taken to fully pay any and all liability refundings, renegotiations,
conversions, and extensions.
(D)
A detailed analysis of costs over the expected financing
period of the project, which shall include:
(i)
costs of operations by reasonable expense categories for
each year; and
(ii)
costs of maintenance for each year, such costs identifying
each major system, structure, and component of the project that is subject
to wear or deterioration, and the analysis of such costs stating both the
cost and the expected frequency of inspection, repair, renewal, rehabilitation,
and/or replacement required to keep the project in like-new condition.
(E)
A pro forma analysis based on cash basis accounting for
each year of planning, design, construction, and the expected financing period
of the project showing:
(i)
anticipated cash receipts, sources of cash receipts, and
rates charged to achieve those cash receipts;
(ii)
anticipated cash disbursements;
(iii)
anticipated cash balances;
(iv)
cash used to meet the requirements of any bond sinking
fund and loan or liability amortization payment.
(F)
A description of the methods used in preparing the financial
feasibility study, the assumptions contained in the study, and persons and
entities responsible for the preparation of the study.
(G)
An analysis of the need for the project and potential impact
on traffic congestion and mobility, [
including identification of the
Texas-Mexico Toll Bridge Study sector, as described in Appendix A of paragraph
(4) of this section, in which the project is located,
] and:
(i)
average annual daily traffic (AADT) in the study
area
[
sector
] for major arterials and controlled access roadways
for both sides of the border for five years preceding the date of the application;
(ii)
data from any existing international bridge or other international
crossing in the study
area
[
sector and adjacent sectors
]
indicating AADT for the five preceding years;
(iii)
data from any existing international bridge or other
international crossing in the study
area
[
sector and the adjacent
sectors
] indicating average delay time for traffic seeking to use any
international bridge or other international crossing for the five preceding
years;
(iv)
projected AADT for the proposed bridge and other crossings
in the study
area
[
sector and adjacent sectors
] 20 years
after completion (projections shall be based on the current department travel
demand model, and the process used to make the projections shall be clearly
identified and submitted with the data);
(v)
a comparison of the project with other similar projects
already in operation; and
(vi)
a projection of changes in the free flow of trade caused
by the project.
(3)
Social and environmental impact. An applicant shall conduct
a study of the social and environmental impact of the project[
, consistent
with the spirit and intent of the National Environmental Policy Act (NEPA),
Title 42, United States Code, §§4321 et seq., and Title 23, United
States Code, §109(h),
] and shall provide for public involvement
and notice to local officials
.
(A)
Environmental documentation.
An applicant shall comply
with the requirements in Chapter 2 of this title (relating to Environmental
Policy) and shall obtain the environmental approvals required for the project.
In addition to any approval required by a federal agency, the applicant shall
obtain the department's approval of the form and content of an environmental
document prepared under subchapters A and C of Chapter 2 of this title.
[
(i)
An applicant shall prepare
an environmental assessment or an environmental impact statement in accordance
with NEPA.]
[
(ii)
The form and content of an
environmental assessment or environmental impact statement prepared by an
applicant must be approved by the department.]
(B)
Public involvement.
An applicant shall comply with
the public involvement requirements in Chapter 2 of this title that apply
to paragraph (3)(A) of this section. Notices of public meetings and public
hearings must include
[
An applicant shall provide for public involvement
by
]:
(i)
a statement that the applicant intends to submit an
international bridge application to the commission
[
holding one
or more public meetings
];
(ii)
a description of the proposed bridge, including a
description of the design and adjacent facilities and identification of the
area to be served
[
publishing a notice of the public meeting in
local newspapers having a general circulation not less than 10 days before
each public meeting
]; and
(iii)
instructions that competing bridge applicants may
submit information pertaining to the design, financial feasibility, and social
and environmental impact of a competing project to the applicant no later
than 60 days after the date of the notice
[
notifying the department
in writing not less than 10 days in advance of each public meeting
].
(C)
Notice to local officials
[
Record
].
The applicant shall send a copy of the notice described in paragraph (3)(B)
of this section by first class mail to the county judge of each county within
150 miles of the location of the project and the mayor of each municipality
within 50 miles of the location of the project.
[
An applicant shall
provide the department a summary of all public meetings held under this section.
The summary and analysis for each public meeting shall include:
]
[
(i)
a summary of the meeting;]
[
(ii)
a summary of comments received,
and the response to and analysis of comments; and]
[
(iii)
a summary of the proposed
changes in project location and design planned as a result of comments.]
[
(D)
Revision to environmental
document. An applicant shall revise the environmental document for the project
to address any issues or concerns identified during the public involvement
process.]
(4)
Analysis of competing applications.
An applicant shall address the impact of competing projects (if any) and demonstrate
how its submittal is superior to that of any competing bridge applicant.
(A)
The applicant's preliminary study analysis shall
be performed depicting any competing projects. The applicant shall perform
an analysis demonstrating the applicant's project as a stand-alone project
and, if there is a competing project, an analysis showing both the applicant's
project and any competing projects. The analysis reflecting the competing
projects must demonstrate how design, traffic, financial, social, and environmental
impacts are affected by the competing projects and shall include the rationale
for how one project is superior based on these impacts, for example, cost
benefits, project viability, better design, and less adverse social and environmental
impacts.
(B)
The applicant will not be required to include
an analysis of the competing project unless the competing bridge applicant
provides the information described in paragraph (3)(B)(iii) of this section
by the deadline specified in that paragraph.
[
(4)
Sectors. The following Appendix
A describes the sectors identified in the Texas-Mexico Toll Bridge Study.]
[
Figure: 43 TAC §15.73(4)
]
§15.74.Application.
To secure approval of a project, an applicant must file an application
and 20 copies of the application with the department's [
deputy
]
executive director [
for transportation planning and development
]
or his or her designee who shall serve as department liaison for the project.
The application shall be in a form prescribed by the department, and must
include
[
be accompanied by
]:
(1)
a description of the applicant, including:
(A)
form of organization under the laws of this state; and
(B)
history of operations and/or business conducted;
(2)
a definition of major financial, operating, and business
policies of the applicant that will affect operations or the conduct of business,
including:
(A)
key operating conditions; and
(B)
compliance with existing federal, state, and local laws
and regulations;
(3)
the preliminary study completed in accordance with §15.73
of this
subchapter
[
title
] (relating to Preliminary
Studies); and
(4)
any written commitments from the appropriate federal jurisdictions
of the United Mexican States to provide adequate roadway connections to the
bridge, and similar commitments from state and municipal transportation agencies
for any state highway or local street infrastructure necessary to make the
bridge fully operational.
§15.75.Department Action.
(a)
Coordination.
(1)
Upon the receipt of a complete application, the department
will submit a copy of the application and request views and comments from
the:
(A)
Department of Public Safety of the State of Texas;
(B)
Texas
Commission on Environmental Quality
[
Natural Resource Conservation Commission
];
(C)
Texas Historical Commission;
(D)
Department of Agriculture;
(E)
Texas Alcoholic Beverage Commission;
[
(F)
Texas Department of Commerce;]
(F)
[
(G)
] Office of the Governor;
(G)
[
(H)
] any other state agency the
department determines is appropriate considering the nature of the project;
and
(H)
[
(I)
] any entity which may be significantly
affected by the project.
(2)
The department will also seek the advice of the local metropolitan
planning organization, if any, as to whether the project will be consistent
with the regional transportation plan.
(3)
The department will allow an agency or entity 20 days from
the date the agency or entity receives a copy of the application for the submission
of views and comments under this subsection.
(b)
Process and analysis of application.
(1)
The department reserves the right to return, or hold
,
pending corrections submitted by the applicant, an application that
the department determines is not in full compliance with the requirements
of §15.74 of this
subchapter
[
title
] (relating
to Application). The department, when returning an application, will identify
in writing all areas deemed to be deficient.
(2)
The department and the commission will not perform work
to recast, redraw, calculate, construct, reconstruct, or otherwise produce
any element of the preliminary study which is not adequately presented by
the applicant.
(3)
The commission may consider missing, ambiguous, uncertain,
or unclear elements in the financial feasibility study as tending to the conclusion
that the project has substantial speculative elements in its financing and
should not be approved.
(4)
The commission will consider
the impact of a competing bridge, whether proposed, approved, or constructed.
The commission will consider information provided by a competing bridge applicant
only to the extent the competing bridge applicant timely submitted the information
to the applicant under §15.73 of this subchapter. The commission will
consider any other information provided by the department.
(c)
Public hearing. If the department finds that the application
meets the requirements of
this section
[
§15.74 of this
title (relating to Application)
], it shall notify the applicant of its
findings, forward a copy of the findings to the Office of the Governor, and
shall conduct a public hearing to receive public comment on the project. A
public hearing held by the department under this subsection shall be conducted
by the executive director of the department or the director's designee in
accordance with §1.5 of this title (relating to Public Hearings). Any
persons, including, but not limited to, official representatives of a county,
municipality, metropolitan planning organization, or other governmental entity,
and any individual, group, or association may provide comment.
(d)
Report to commission. Subsequent to the public hearing,
the department will submit the application together with its findings and
recommendations to the commission for appropriate action. The department will
consider the views and comments received under subsection (a) of this section
prior to making its findings and recommendations.
§15.76.Commission Action.
(a)
Commission analysis.
[
(1)
]
The commission may consider the advice of
the staff of the department and consultants that the commission may choose
regarding the sufficiency of the information, the probable accuracy of projections,
the anticipated financial condition of the application and the project, the
impact of the project on the economy and free trade, and any other information
the commission determines appropriate.
[
(2)
The commission may use the
Texas-Mexico Toll Bridge Study as the initial basis for evaluating the demand,
impact on the economy and the potential impact on the free flow of trade anticipated
by the project. An applicant may submit additional information which supports,
amplifies, or rebuts data in the Texas-Mexico Toll Bridge Study in the applicant's
feasibility study.]
(b)
Comments and commitments of other entities. Prior to granting
approval of a project, the commission shall consider, but is not bound by:
(1)
the nature and extent of any commitments from Mexican authorities
provided in accordance with §15.74(4) of this
subchapter
[
title
] (relating to Application); and
(2)
the views and comments of an agency or entity listed in §15.75
of this
subchapter
[
title
] (relating to Department Action).
(c)
Project requirements. The commission will not approve a
project unless it finds that:
(1)
the project will provide for all reasonable and feasible
measures to avoid, minimize, or mitigate for adverse environmental impacts;
(2)
the project is consistent with the state transportation
plan and, if appropriate, with the regional transportation plan developed
by a metropolitan planning organization having jurisdiction over the project;
and
(3)
the future transportation infrastructure, at the time of
the bridge operations, on both sides of the border will be of sufficient capacity
to support the new structure.
(d)
Financial requirements. The commission will not approve
a project if it finds that the project's financial prospects over the expected
financing period of the project are likely to categorize the project as being
of less than investment quality due to one or more of the following conditions:
(1)
the project has more than minimal speculative elements
in its prospective finances;
(2)
the financial future of the project cannot be considered
as well assured;
(3)
protection of any lenders or bond holders is not well safeguarded
over the expected financing period of the project; or
(4)
the project will probably cause negative impacts on the
economy or the free flow of trade that are greater than any probable positive
impacts in the
study area
[
Texas-Mexico Toll Bridge Study
sector where the project is located and adjacent sectors
].
(e)
Final action.
(1)
Approval or disapproval of the project shall be by written
order of the commission, and shall include the rationale, findings, and conclusions
on which approval or disapproval is based.
(2)
The commission will approve or disapprove the application
within 120 days of the date of receipt of a complete application. If an application
is returned under §15.75 of this
subchapter
[
title relating
to Department Action)
], the commission will approve or disapprove the
application within 120 days of the date that re-submitted complete application
has been received by the department.
(3)
If the commission does not approve the
application, the applicant shall withdraw the request for approval from the
United States.
(4)
[
(3)
] The department will provide
written notification of the commission's action to the applicant and the Office
of the Governor.
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 May 26, 2006.
TRD-200602922
Richard D. Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: July 9, 2006
For further information, please call: (512) 463-8683