Proposed Rules Title 43

TITLE 43. TRANSPORTATION

PART 1. TEXAS DEPARTMENT OF TRANSPORTATION

SUBCHAPTER G. OPERATION OF DEPARTMENT TOLL PROJECTS

The Texas Department of Transportation (department) proposes amendments to §§27.80 - 27.82 and the repeal of §27.86, all concerning Operation of Department Toll Projects.

EXPLANATION OF PROPOSED AMENDMENTS AND REPEAL

The primary purpose of this rulemaking is to provide contracting flexibility for the department with respect to the operation of its toll projects. In addition, the rulemaking corrects outdated terminology and eliminates unnecessary provisions.

Amendments to §27.80, Definitions, add the defined term "Toll Project Entity" to mean an entity authorized by law to acquire, design, construct, finance, operate, and maintain a toll project, including a regional tollway authority under Transportation Code, Chapter 366, a regional mobility authority under Transportation Code, Chapter 370, or a county under Transportation Code, Chapter 284.

Amendments to §27.81, Free Use of Turnpike Project By Military Vehicle, replace the term "turnpike" with the term "toll" for consistency with current statutory provisions. The amendments also add new subsection (g), which provides that if the department enters into an agreement with a toll project entity to operate a toll project, the use of the project by military vehicles may be governed by the rules and policies of the toll project entity in lieu of the requirements of the section, with exception of subsection (f).

Amendments to §27.82, Toll Operations, update the heading of subsection (f) to distinguish that subsection from new subsection (i). New subsection (i) provides that if the department enters into an agreement with a toll project entity to operate a toll project, the operation of the project may be governed by the rules and policies of the toll project entity in lieu of the requirements of the section, with the exception of subsections (d) and (g).

Repeal of §27.86, Veteran Discount Program, eliminates the stated requirements for an electronic toll collection customer to participate in the veteran discount program established pursuant Texas Transportation Code, §372.053. This rule was never implemented due to system limitations and the department has subsequently determined that the provisions are unnecessary.

FISCAL NOTE

Stephen Stewart, Chief Financial Officer, has determined, in accordance with Government Code, §2001.024(a)(4), that for each of the first five years in which the proposed rules are in effect, there will be no fiscal implications for state or local governments as a result of the department's or commission's enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Benjamin Asher, Director, Project Finance, Debt and Strategic Contracts Division, has determined that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed rules and therefore, a local employment impact statement is not required under Government Code, §2001.022.

PUBLIC BENEFIT

Benjamin Asher has determined, as required by Government Code, §2001.024(a)(5), that for each year of the first five years in which the proposed rules are in effect, the public benefit anticipated as a result of enforcing or administering the rules will be consistent regional policies and procedures for the operation of toll projects and elimination of an unnecessary rule.

COSTS ON REGULATED PERSONS

Benjamin Asher, has also determined, as required by Government Code, §2001.024(a)(5), that for each year of that period there are no anticipated economic costs for persons, including a state agency, special district, or local government, required to comply with the proposed rules and therefore, Government Code, §2001.0045, does not apply to this rulemaking.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities, as defined by Government Code, §2006.001, and therefore, an economic impact statement and regulatory flexibility analysis are not required under Government Code, §2006.002.

GOVERNMENT GROWTH IMPACT STATEMENT

Benjamin Asher has considered the requirements of Government Code, §2001.0221 and anticipates that the proposed rules will have no effect on government growth. He expects that during the first five years that the rule would be in effect:

(1) it would not create or eliminate a government program;

(2) its implementation would not require the creation of new employee positions or the elimination of existing employee positions;

(3) its implementation would not require an increase or decrease in future legislative appropriations to the agency;

(4) it would not require an increase or decrease in fees paid to the agency;

(5) it would not create a new regulation;

(6) it would not expand, limit, or repeal an existing regulation;

(7) it would not increase or decrease the number of individuals subject to its applicability; and

(8) it would not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

Benjamin Asher, has also determined that a written takings impact assessment is not required under Government Code, §2007.043.

SUBMITTAL OF COMMENTS

Written comments on the amendments to §§27.80 - 27.82 and the repeal of §27.86, may be submitted to Rule Comments, General Counsel Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483 or to RuleComments@txdot.gov with the subject line "operation of department toll projects." The deadline for receipt of comments is 5:00 p.m. on July 8, 2024. In accordance with Transportation Code, §201.811(a)(5), a person who submits comments must disclose, in writing with the comments, whether the person does business with the department, may benefit monetarily from the proposed amendments, or is an employee of the department.

43 TAC §§27.80 - 27.82

STATUTORY AUTHORITY

The amendments 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, §228.007, which authorizes the department to enter into an agreement with a toll project entity to design, construct, operate, or maintain a toll lane on a state highway and to charge a toll for the use of one or more lanes of a state highway facility, Transportation Code, §228.059, which authorizes a toll collected for the use of a toll lane on a state highway pursuant to an agreement for tolling services with a toll project entity to be governed by the fee and fine structure of the entity issuing the initial toll invoice, Transportation Code, §362.901, which requires the commission to adopt rules relating to the free use of department toll projects by military vehicles, and Transportation Code, §372.053, which authorizes a toll project entity to establish a veterans discount program.

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Transportation Code, §228.007, §228.059, §362.901, and §372.053.

§27.80.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Commission--The Texas Transportation Commission.

(2) Comprehensive development agreement--An agreement as defined in §27.2 of this chapter (relating to Definitions).

(3) Department--The Texas Department of Transportation.

(4) Executive director--The executive director of the department or designee.

(5) Military vehicle--A vehicle owned by a branch of the armed forces of the United States or national or state guard of the United States, properly marked according to the rules of the owning military branch, and not registered with a state motor vehicle registry to an individual, corporation, or entity other than the owning military branch or organization.

(6) Operational concession--An agreement under which a private operator purchases a right to conduct a business involving a toll project for a specified number of years in return for a fee paid to the department and the assumption of operation and maintenance responsibilities.

(7) Tag--A transponder placed on or within a vehicle that is capable of transmitting information used to assess or collect tolls.

(8) Toll project--A project of the Texas Department of Transportation as defined by Transportation Code, §201.001.

(9) Toll project entity--An entity authorized by law to acquire, design, construct, finance, operate, and maintain a toll project, including a regional tollway authority under Transportation Code, Chapter 366, a regional mobility authority under Transportation Code, Chapter 370, or a county under Transportation Code, Chapter 284.

§27.81.Free Use Of Toll [~~Turnpike~~] Project By Military Vehicles.

(a) Purpose. Transportation Code, §362.901, requires the commission to adopt rules to allow a military vehicle to use toll [~~turnpike~~] projects without payment of a toll or fare. This section describes the policies implementing §362.901.

(b) General. Except as provided in subsection (f) or (g) of this section, the department will allow free use of toll [~~turnpike~~] projects by military vehicles in convoy and individually. Military vehicles will be allowed free use in all lanes except where it would be unsafe or impractical to do so.

(c) Electronic toll collection (ETC) lanes. The department prefers that military vehicles use ETC lanes. Military vehicles will not be required to carry transponders or be registered with a toll customer service center in order to obtain free passage.

(d) Automated enforcement. The department will develop procedures so that military vehicle images recorded by automated violation enforcement systems, if any, will be rejected and violation notices will not be issued.

(e) Records. The department may maintain records of free passage of military vehicles on its toll [~~turnpike~~] projects for audit, reconciliation, and reporting purposes.

(f) Exception. To the extent of any inconsistency with the requirements of this subchapter, the provision of free passage for military vehicles on toll [~~turnpike~~] projects that are governed by a trust agreement or indenture in existence on the effective date of this subchapter shall be governed by the terms of that trust agreement or indenture.

(g) Operating agreements with a toll project entity. If the department enters into an agreement with a toll project entity to operate a toll project, the use of the project by military vehicles may be governed by the rules and policies of the toll project entity in lieu of the requirements of this section, with the exception of subsection (f) of this section.

§27.82.Toll Operations.

(a) Toll policies. The department shall adopt policies relating to toll collection and enforcement and the operation of customer service centers. The policies will authorize all fees imposed under this section to be paid by credit card, debit card not requiring the entry of a personal identification number (PIN), money order, personal or cashier's check, or cash. In adopting those policies, the department shall consider:

(1) whether those policies will provide ease of use by travelers and maximize mobility on toll projects;

(2) whether those policies will provide a high level of customer service;

(3) the requirements of project bond covenants;

(4) cost of operations;

(5) whether those policies will facilitate the auditing of customer service center operations and the marketing of toll projects; and

(6) whether those policies will maximize the preservation of revenue streams.

(b) Exception. Toll collection and enforcement policies adopted by the department are not subject to the requirements of §5.10 of this title (relating to Collection of Debts).

(c) Customer account fees. The department may charge fees to customers for purposes of establishing and administering electronic toll collection customer accounts. The commission by minute order will establish customer account fees. In establishing customer account fees, the commission will consider the cost of operations, including the estimated cost to the department for labor, materials, storage, postage, and bank fees, as well as the requirements of project bond covenants. Customer account fees may be waived or dismissed in accordance with toll collection and enforcement policies adopted by the department under this section. Customer account fees may include fees for the following items:

(1) standard tags;

(2) specialty tags;

(3) mailed or faxed account statements;

(4) account maintenance; and

(5) checks returned for insufficient funds.

(d) Toll rates. Except as provided in subsections (f) and (g) of this section, the commission by minute order will establish toll rates for the use of a toll project. In setting toll rates, the commission will consider:

(1) the results of traffic and revenue studies and any schedule of toll rates established in a traffic and revenue report;

(2) the requirements of project bond covenants; and

(3) vehicle classifications, type and location of the facility, and similar criteria that apply to a specific project.

(e) Administrative fees. Except as provided in subsection (f) of this section, the owner or lessee of a vehicle who fails to pay the amount owed as stated in an invoice from the department for the use of a toll project may be charged an administrative fee of $4 per unpaid invoice. Administrative fees may be waived or dismissed in accordance with toll collection and enforcement policies adopted by the department under this section.

(f) Operating agreements with a private entity. The commission may authorize a private entity under contract to operate a department toll project to set toll rates for the use of the toll project and to establish an administrative fee charged to owners of vehicles that use the toll project without paying the proper toll, if:

(1) the private entity is required under the contract to submit to the department for approval:

(A) the methodology for:

(i) the setting of tolls;

(ii) increasing the amount of the tolls; and

(iii) the setting of an administrative fee to be imposed to recover the cost of collecting an unpaid toll; and

(B) any proposed change in an approved methodology for the setting of a toll or an administrative fee;

(2) the private entity will operate the toll project under a comprehensive development agreement or under a contract resulting from a procurement under §27.83 of this chapter (relating to Contracts to Operate Department Toll Projects) that provides an operational concession to the private entity; and

(3) the commission approves the award of the contract to the private entity.

(g) Dynamic pricing. The executive director will establish toll rates for the use of a toll project where dynamic pricing is in effect. In setting the toll rates, the executive director will consider vehicle classifications, type and location of the facility, regional policies, and similar criteria that apply to a specific project. The toll rates may be established through the approval of an algorithm or other methodology designed to maintain a free-flowing level of traffic on one or more lanes of the toll project.

(h) Toll Assessment Review. An owner or lessee may, not later than the due date specified in the invoice from the department, send a written request to the department for a review of the toll assessments contained in the invoice. If, after a review, the department determines that the tolls were assessed correctly, the customer will be responsible for paying the amount owed as stated in the invoice. If the department determines that any of the tolls were assessed incorrectly, the department will provide the customer with an updated balance due. If the customer fails to pay the amount owed by the due date specified in the first invoice after the review, the department may charge the customer an administrative fee, as described in subsection (e) of this section. A request under this subsection must be mailed to the department's customer service center at 12719 Burnet Road, Austin, Texas 78727, or submitted through www.txtag.org, and must include the following information:

(1) the customer's name, address, and contact information;

(2) the make, model, year, and license plate number of the vehicle associated with the tolls under review;

(3) the date, time, and location of the tolls under review;

(4) the reason that the tolls are being disputed; and

(5) if the dispute involves vehicle ownership, the date that the person purchased or sold the vehicle, as applicable.

(i) Operating agreements with a toll project entity. If the department enters into an agreement with a toll project entity to operate a toll project, the operation of the project may be governed by the rules and policies of the toll project entity in lieu of the requirements of this section, with the exception of subsections (d) and (g) of this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 23, 2024.

TRD-202402325

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: July 7, 2024

For further information, please call: (512) 463-3164

43 TAC §27.86

STATUTORY AUTHORITY

The repeal is 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, §228.007, which authorizes the department to enter into an agreement with a toll project entity to design, construct, operate, or maintain a toll lane on a state highway and to charge a toll for the use of one or more lanes of a state highway facility, Transportation Code, §228.059, which authorizes a toll collected for the use of a toll lane on a state highway pursuant to an agreement for tolling services with a toll project entity to be governed by the fee and fine structure of the entity issuing the initial toll invoice, Transportation Code, §362.901, which requires the commission to adopt rules relating to the free use of department toll projects by military vehicles, and Transportation Code, §372.053, which authorizes a toll project entity to establish a veterans discount program.

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Transportation Code, §228.007, §228.059, §362.901, and §372.053.

§27.86.Veteran Discount Program.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 23, 2024.

TRD-202402326

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: July 7, 2024

For further information, please call: (512) 463-3164

CHAPTER 28. OVERSIZE AND OVERWEIGHT VEHICLES AND LOADS

SUBCHAPTER H. HIDALGO COUNTY REGIONAL MOBILITY AUTHORITY PERMITS

43 TAC §28.102

The Texas Department of Transportation (department) proposes the amendments to §28.102 concerning Authority's Powers and Duties.

EXPLANATION OF PROPOSED AMENDMENTS

These amendments grant the Hidalgo County Regional Mobility Authority (HCRMA) additional authority to issue permits for the operation of oversize/overweight vehicles on a designated roadway segment within Hidalgo County and clarify the limits of that authority. Transportation Code, §623.363(a)(2), authorizes the Texas Transportation Commission (commission) to designate additional routes for which HCRMA may issue oversize and overweight permits. The statute requires that the commission consult with HCRMA prior to the designation. The department worked with HCRMA to identify the additional route that would benefit the HCRMA permitting process.

Amendments to §28.102, Authority's Powers and Duties, clarify that the purpose of the rule is to authorize the issuance of permits by the HCRMA for roads listed under Transportation Code, §623.363, and those routes identified and designated by the commission. The amendments add an additional route designated by the commission for which HCRMA is authorized to issue permits for the operation of oversize/overweight vehicles. The added route is: the segment of W. Doffing Road from the intersection with Doffin Canal Road/S. Veterans Blvd (Spur 29) to 0.8 miles east of that intersection, which segment is not on the state highway system. This addition expands HCRMA's permitting authority for the operation of the roadways within its jurisdiction and allows HCRMA to provide more complete service to the motor carriers using the permits within Hidalgo County.

These amendments also require, prior to issuing any oversize/overweight permits on the newly added off-system roadway, HCRMA must demonstrate to the department's satisfaction that the roadway has sufficient structure to safely sustain the overweight loads. The amendments also dictate that it is the responsibility of HCRMA to maintain the off-system road and that the maintenance contract required between the department and HCRMA will provide for the allocation of permit fees between the department and HCRMA. Finally, the amendments dictate that HCRMA may not issue permits that authorize travel on this off-system segment of roadway after September 30, 2025.

FISCAL NOTE

Stephen Stewart, Chief Financial Officer, has determined, in accordance with Government Code, §2001.024(a)(4), that as a result of enforcing or administering the rules for each of the first five years in which the proposed rules are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendments. The permit fee collected by HCRMA will be used to cover the cost of any additional damage to the roadway added by this amendment.

LOCAL EMPLOYMENT IMPACT STATEMENT

James Stevenson, P.E., Director, Maintenance Division, has determined that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed rules and therefore, a local employment impact statement is not required under Government Code, §2001.022.

PUBLIC BENEFIT

Mr. Stevenson has determined, as required by Government Code, §2001.024(a)(5), that for each year of the first five years in which the proposed rules are in effect, the public benefit anticipated as a result of enforcing or administering the rules will be more efficient freight transportation and a potential for vehicle reduction.

COSTS ON REGULATED PERSONS

Mr. Stevenson has also determined, as required by Government Code, §2001.024(a)(5), that for each year of that period there are no anticipated economic costs for persons, including a state agency, special district, or local government, required to comply with the proposed rules and therefore, Government Code, §2001.0045, does not apply to this rulemaking.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS

GOVERNMENT GROWTH IMPACT STATEMENT

Mr. Stevenson has considered the requirements of Government Code, §2001.0221, and anticipates that the proposed rules will have no effect on government growth. He expects that during the first five years that the rule would be in effect:

(1) it would not create or eliminate a government program;

(2) its implementation would not require the creation of new employee positions or the elimination of existing employee positions;

(3) its implementation would not require an increase or decrease in future legislative appropriations to the agency;

(4) it would not require an increase or decrease in fees paid to the agency;

(5) it would not create a new regulation;

(6) it would not expand, limit, or repeal an existing regulation;

(7) it would not increase or decrease the number of individuals subject to its applicability; and

(8) it would not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

Mr. Stevenson has determined that a written takings impact assessment is not required under Government Code, §2007.043.

SUBMITTAL OF COMMENTS

Written comments on the amendments to §28.102 may be submitted to Rule Comments, General Counsel Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483 or to RuleComments@txdot.gov with the subject line "HCRMA OSOW Permitting." The deadline for receipt of comments is 5:00 p.m. on July 8, 2024. In accordance with Transportation Code, §201.811(a)(5), a person who submits comments must disclose, in writing with the comments, whether the person does business with the department, may benefit monetarily from the proposed amendments, or is an employee of the department.

STATUTORY AUTHORITY

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Transportation Code, Chapter 623, Subchapter S.

§28.102.Authority's Powers and Duties.

(a) Authority authorized to issue permits. Subject to subsection (j) of this section, the [~~The~~] authority may issue a permit and collect a fee for the movement within the territory of the authority of a vehicle or vehicle combination that exceeds the vehicle size or weight limits specified by Transportation Code, Chapter 621, Subchapters B and C, but does not exceed loaded dimensions of 12 feet wide, 16 feet high, and 110 feet long, and does not exceed 125,000 pounds gross weight for travel on:

(1) the state-owned roads designated by Transportation Code, §623.363;

(2) US 281/Military Highway from Spur 29 to FM 1015;

(3) FM 1015 from US 281/Military Highway, south to the Progreso International Bridge;

(4) FM 2557 from US 281/Military Highway to Interstate 2;

(5) FM 3072 from Veterans Boulevard ("I" Road) to Cesar Chavez Road;

(6) US 281 (Cage Boulevard) from Spur 600 to Anaya Road; [~~and~~]

(7) U.S. Highway 83 Business from South Pleasantview Drive to South Bridge Avenue; and

(8) the segment of W. Doffing Road from the intersection with Doffin Canal Road/S. Veterans Blvd (Spur 29) to 0.8 miles east of that intersection, which segment is not on the state highway system.

(b) Surety bond. The authority shall obtain a surety bond in the amount set by the department to cover the estimated annual maintenance costs of roads identified in subsection (a) of this section. The department will draw on the bond only if revenue collected from permits issued under this subchapter is insufficient to pay for those costs and the authority fails to reimburse the department for those costs. The estimated maintenance costs will be based on the amortized cost of the identified roads, projected regular maintenance and operations costs, and the bridge consumption costs associated with the movement of overweight and oversize vehicles issued a permit by the authority.

(c) Verification of permits. The authority shall provide law enforcement and department personnel access to any of the authority's property to verify compliance with this subchapter by the authority or another person.

(d) Training. The authority shall provide or obtain any training necessary for personnel to issue permits under this subchapter. The department may provide assistance with training on request by the authority.

(e) Accounting. The department shall develop accounting procedures related to permits issued under this subchapter with which the authority must comply for revenue collections and any payment made to the department under subsection (i) of this section.

(f) Audits. The department may conduct audits annually or at the direction of the executive director of all permit issuance activities of the authority. To insure compliance with applicable law, audits at a minimum will include a review of all permits issued, financial transaction records related to permit issuance and vehicle scale weight tickets, and the monitoring of personnel issuing permits under this subchapter.

(g) Revocation of authority to issue permits. If the department determines as a result of an audit that the authority is not complying with this subchapter or other applicable law, the executive director will issue a notice to the authority allowing 30 days for the authority to correct any non-compliance issue. If the department determines that, after that 30-day period, the authority has not corrected the issue, the executive director may revoke the authority's authority to issue permits under this subchapter. The authority may appeal to the commission in writing the revocation of its authority under this subsection. If the authority appeals the revocation, the authority's authority to issue permits under this subchapter remains in effect until the commission makes a final decision on the appeal.

(h) Fees. Fees under this subchapter may be collected, deposited, and used only as provided by Transportation Code, §623.364. The authority may determine acceptable methods of payment. All fees transmitted to the department must be in U.S. currency. On revocation of the authority's authority to issue permits, termination of the maintenance contract entered into under subsection (i) of this section, or expiration of this subchapter, the authority shall pay to the department all permit fees collected by the authority, less allowable administrative costs.

(i) Maintenance contract. The authority shall enter into a contract with the department for the maintenance of roads identified in subsection (a) of this section for which a permit may be issued under this subchapter. The contract will cover routine maintenance, preventive maintenance, and total reconstruction of the roadway and bridge structures, as determined by the department to maintain the current level of service, and may include other types of maintenance.

(j) Off-system roadways. Before the authority may issue a permit and collect a fee for the movement of a vehicle or vehicle combination on a roadway designated in subsection (a)(8) of this section, the authority must demonstrate to the satisfaction of the department that the roadway has sufficient structure to safely sustain the overweight loads. The authority is responsible for the maintenance and repair of each roadway designated in subsection (a)(8) of this section for which it issues a permit to the level of service determined by the department under subsection (i) of this section. The maintenance contract entered into under subsection (i) of this section must provide details of the allocation of the permit fees to be used for the maintenance of such a roadway. The authority may not issue a permit for the movement of a vehicle or vehicle combination after September 30, 2025, on a roadway designated in subsection (a)(8) of this section.

(k) [j] Reporting. The authority shall provide monthly and annual reports to the department's Finance Division regarding all permits issued and all fees collected during the period covered by the report. The report must be in a format approved by the department.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 23, 2024.

TRD-202402327

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: July 7, 2024

For further information, please call: (512) 463-3164