EMERGENCY RULES An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing and remaining in effect no more than 120 days. The emergency action is renewable once for no more than 60 additional days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 27. Toll Projects Subchapter B. Texas Turnpike Authority 43 TAC sec.sec.27.20-27.26 The Texas Department of Transportation adopts on an emergency basis new sec.sec.27.20-27.26 concerning the Texas Turnpike Authority. Transportation Code, Chapters 361 and 362, require that the Texas Transportation Commission authorize feasibility studies funded from the Texas Turnpike Authority Feasibility Study Fund and that the commission approve environmental reviews of authority projects, the location of authority projects, and any transfer of an authority project to another entity. Transportation Code, sec.362.051, prohibits the authority from initiating construction of a toll road, toll bridge, or turnpike without first obtaining commission approval if the project is to become part of the state highway system. Senate Bill 1360 enacted by the 74th Texas Legislature, 1995, amended the Transportation Code by creating sec.362.0041. This legislation allows the commission, upon approval of the Governor, to transfer an existing segment of a state highway to the authority for operation as a toll road when such a transfer is the most feasible and economic means to accomplish necessary enlargements, improvements or extensions of the state highway system. Section 27.20 explains that the purpose of the rules is to establish the criteria and procedures for the approval of certain phases of the development of turnpike projects constructed, maintained and operated by the authority; transfer existing free public highways to the authority to accomplish needed enlargements, improvements, or extensions; authorization of authority feasibility studies and approval of the authority's environmental reviews, project locations, projects, control of access, and transfer of projects. Section 27.21 defines words and terms used in the new subchapter. Section 27.22 requires that the authority submit a written request for authorization to conduct a project feasibility study, and provides that the commission shall consider the potential for environmental impact and the project's general compatibility with the state and regional transportation plans. Section 27.23 requires that the authority submit a written request for approval of an environmental review, requires that the authority's environmental review shall be conducted in accordance with the authority's rules, and provides that the commission will approve the authority's environmental review if it complies with this section and applicable laws. Section 27.24 authorizes the authority to designate the location, and establish, limit and control the points of ingress and egress from projects; provides that upon payment of all bonds and acceptance by the commission a turnpike project shall become part of the free state highway system; provides that certain governmental entities may not begin construction of a toll or turnpike project without commission approval if the project is to become part of the state highway system; requires that the authority submit a written request for project approval and provides a list of the required documentation; and provides the criteria for commission approval including effective integration into the state highway system, the department's ability to construct any connecting roads necessary for the project to generate sufficient revenue, and location of points of ingress and egress which ensure proper operation and maintenance. Section 27.25 provides that turnpike projects may be transferred to certain entities if the authority, the commission, and the Governor approve the transfer as being in the best interest of the state and the local government, requires that the authority submit a written request to lease, sell or otherwise convey a project from the authority to another entity and that such request must be accompanied by a written commitment from the accepting entity to maintain the facility in a safe and efficient manner, and an evaluation of the impact of such action on regional mobility and project financial viability; and establishes the criteria that the commission will consider before approving the lease, sale or conveyance of a project. Section 27.26 provides that if the commission finds that the conversion of an existing public highway (or segment of highway) to a toll facility is the most feasible and economic means to accomplish necessary enlargements, improvements or extensions to the state highway system, that segment may, on approval of the Governor, be transferred to the authority; requires the commission to conduct a public hearing prior to transferring an existing highway to the authority; requires publication of public hearing notices; requires the department to prepare a public hearing summary; requires the authority to reimburse the commission for the cost of a transferred highway unless the commission finds that the transfer will result in a substantial net benefit to the state; establishes the criteria that the commission will consider before agreeing to transfer an existing highway; authorizes the commission to request approval from the Governor to execute such a transfer; requires the commission to remove a transferred segment from the designated state highway system; and requires the authority to assume responsibility and liability for maintenance and operation of the transferred facility. It is necessary to adopt these new sections on an emergency basis in order: to comply with Transportation Code, Chapters 361 and 362; to minimize the potential for serious adverse economic impact due to the current transportation funding shortfall facing Texas while enhancing safety and mobility; to expedite certain projects which will alleviate critical traffic congestion and adverse air quality and economic conditions; and to facilitate the authority's and the commission's actions concerning transportation projects. The new sections are adopted under Transportation Code, s201.101, 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, Chapters 361 and 362, which provides that the commission must approve various aspects of turnpike project development and transfer of authority projects to other governmental entities; and may, upon approval of the Governor, transfer an existing public highway to the authority for conversion to a toll facility. sec.27.20. Purpose. Transportation Code, Chapter 361, and Transportation Code, Chapter 362, Subchapter B, require the approval of the Texas Transportation Commission and the Texas Department of Transportation for certain phases of the development of turnpike projects constructed, maintained, and operated by the Texas Turnpike Authority. Transportation Code, sec.362. 0041, also authorizes the commission to transfer existing free public highways to the authority to accomplish needed enlargements, improvements, or extensions. This subchapter governs authorization of authority feasibility studies funded through the authority's Feasibility Study Fund and approval of the authority's environmental reviews, project locations, projects, control of access, and transfer of projects. It also establishes the criteria and procedures by which the commission may transfer an existing public highway to the authority for conversion to a turnpike project. sec.27.21. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Authority-The Texas Turnpike Authority. Commission-The Texas Transportation Commission. Department-The Texas Department of Transportation. Executive director -The chief administrative officer of the department. Feasibility study -Collectively, all evaluations and analyses necessary to ascertain the financial, technical, and environmental viability of a proposed project, including route location, environmental and financial investment studies. Metropolitan planning organization-An organization designated by the governor to carry out the transportation planning process in prescribed urbanized areas as required by 23 United States Code, sec.134. Turnpike project -A project of the Texas Turnpike Authority as defined by Transportation Code, Chapter 361. sec.27.22. Texas Turnpike Authority Feasibility Study Fund. Transportation Code, s361.182, provides that project feasibility studies funded from the Texas Turnpike Authority Feasibility Study Fund require approval of the commission. To secure approval the authority shall submit a written request to the executive director prior to initiating such a study. When acting on the authority's request, the commission shall consider the potential for environmental impact and the project's general compatibility with the adopted state transportation plan and, if pertinent, the regional transportation plan adopted by a metropolitan planning organization having jurisdiction in the project area. sec.27.23. Environmental Review. (a) Request. Transportation Code, sec.361.103, provides that the environmental review of a turnpike project must be approved by the commission before construction of that project begins. To secure that approval the authority must submit a written request to the executive director. (b) General Requirements. An environmental review submitted for approval under this section shall be conducted in accordance with the rules of the authority concerning environmental review of its projects. (c) Approval. The commission will approve the authority's environmental review if it finds that the review has complied with the requirements of this section. When acting on the authority's request for environmental review approval, the commission will consider applicable provisions of state and federal laws, rules and regulations. sec.27.24. Project Approval. (a) Requirements. Transportation Code, sec.361.101, authorizes the authority to construct, maintain, repair, and operate projects at such locations within the state as may be determined by the authority subject to approval as to location by the commission. Transportation Code, sec.361.043, authorizes the authority to designate the location, and establish, limit, and control such points of ingress to and egress from, each project as may be necessary and desirable in the judgment of the authority and the department to ensure the proper operation and maintenance of said project. Transportation Code, sec.361.238, provides that upon payment of all bonds and the acceptance by the commission as being in good condition and repair, a turnpike project shall become a part of the state highway system to be operated free of tolls. Transportation Code, sec.362.051 provides that certain governmental entities may not begin construction of a toll road, toll bridge, or turnpike without the approval of the commission if the project is to become part of the state highway system. (b) Request. To secure approval under this section the authority shall submit a written request for approval to the executive director. The request must be accompanied by: (1) documentation of the financial viability of the proposed project for purposes of seeking the approval described in subsection (c)(2) of this section; (2) a detailed schematic indicating the location of interchanges, mainlanes, and ingress and egress ramps; (3) a report identifying revisions or changes to state highway system facilities necessitated by the proposed project; and (4) an evaluation of the project integration with the state highway system. (c) Approval. The commission will approve a project if it finds that: (1) the project may be effectively integrated into the state highway system; (2) the department is able to construct any connecting roads necessary for the project to generate sufficient revenue to pay the debt incurred for its construction; and (3) points of ingress and egress are located in a manner that ensures the proper operation and maintenance of the project. sec.27.25. Transfer of Turnpike Projects. (a) Requirements. Transportation Code, sec.361.282, authorizes the transfer of a turnpike project to certain entities if the authority, the commission, and the governor approve the transfer of the project as being in the best interests of the state and the local government. (b) Request. To secure approval under this section to lease, sell, or otherwise convey a turnpike project to another entity the authority shall submit to the executive director a written request. Such request shall be accompanied by: (1) a written commitment to the commission from the accepting entity to maintain the facility in a safe and efficient manner; and (2) an evaluation of the impact of such action on regional mobility and project financial viability. (c) Approval. The commission will approve the lease, sale, or conveyance of a project if it finds that such transfer: (1) is in the best interests of the state; (2) is in the best interests of the county in which the project is located, or, if the project will be transferred to a municipality, is in the best interests of the municipality in which the project is located; and (3) will not adversely affect: (A) the financial viability of the project; or (B) regional mobility. sec.27.26. Transfer of Existing Public Highways. (a) Purpose. Transportation Code, sec.362.0041, provides that if the commission finds that the conversion of an existing segment of the free state highway system to a toll facility is the most feasible and economic means to accomplish necessary enlargements, improvements, or extensions to the state highway system, that segment may, on approval of the governor, be transferred by order of the commission to the authority. (b) Public involvement. Prior to transferring an existing segment of the state highway system to the authority, the commission will conduct a public hearing for the purpose of receiving comments from interested persons concerning the proposed transfer. Notice of the hearing will be published in the Texas Register
    , one or more newspapers of general circulation, and a newspaper, if any, published in the county or counties in which the involved segment of highway is located. The department will prepare a summary of the public hearing and all comments received in response to the hearing. (c) Reimbursement. The authority will reimburse the commission for the cost of the transferred highway, unless the commission finds that the transfer will result in substantial net benefits to the state, the department, and the traveling public that exceed that cost. The cost shall include the total dollar amount expended by the department for the original construction of the transferred highway (and all necessary appurtenant facilities), including all costs associated with the preliminary engineering and design engineering for plans, specifications and estimates, and acquisition of necessary right-of-way. (d) Criteria. The commission may transfer an existing highway to the authority, provided that: (1) the authority agrees, through binding written commitment, to accept the highway for maintenance and operation in a safe and efficient manner while protecting and preserving the state's investment in the facility; (2) the authority demonstrates that based on existing and/or forecasted traffic volumes the project is capable of generating revenue from the toll rates set by the authority sufficient to satisfy project-related debt (including, if applicable, commission reimbursement) and maintenance and operation expenses; (3) the transfer will not adversely affect regional mobility; (4) construction of the necessary enlargement, improvement or extension can be accomplished efficiently, expeditiously, and with a minimum public investment; and (5) if the transferred segment or a facility of which it will become a part is to be enlarged, improved, or extended by the authority, the requirements of sec.27.23 of this title (relating to Environmental Review) and sec.27.24 (relating to Project Approval) are satisfied. (e) Transfer. Provided the commission finds that the conversion of a segment of the existing state highway system to a toll facility is the most feasible and economic means to accomplish necessary enlargements, improvements, or extensions to the state highway system and that such conversion is in the best interest of the State of Texas, the commission will request approval from the governor to execute such a transfer. Coincident with the transfer, the commission will remove the segment of highway from the designated state highway system, and the authority shall assume all responsibility and liability for maintenance and operation of the facility. Issued in Austin, Texas, on October 26, 1995. TRD-9513799 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: October 26, 1995 Expiration date: February 23, 1996 For further information, please call: (512) 463-8630