Proposed Rules Title 43

TITLE 43. TRANSPORTATION

PART 1. TEXAS DEPARTMENT OF TRANSPORTATION

SUBCHAPTER D. RAIL SAFETY

The Texas Department of Transportation (department) proposes the amendments to §7.35 and §7.36 concerning Rail Safety.

EXPLANATION OF PROPOSED AMENDMENTS

Section 7.35 requires railroads to annually report information about hazardous material shipments to the department. Section 7.36 implements Texas Transportation Code, Chapter 191, which provides standards to protect workers from hazards caused by unsafe proximity of structures near railroad tracks and authorizes the department to grant a request to deviate from a requirement of that chapter. Amendments to §7.35 and §7.36 are required to maintain consistency with modern railroad industry best practices for reporting hazardous material shipping and to improve the efficiency of compliance with safety regulations. The amendments support emergency preparedness and reduce administrative burdens for state agencies and railroads.

Amendments to §7.35, Hazardous Materials - Written Reports, remove unused definitions, update and clarify language to match modern industry standards, and update the content of reporting by requiring reporting of more specific data on a per-county basis.

Amendments to §7.36, Clearances of Structures Over and Alongside Railway Tracks, change the process used for the department to grant applications to deviate from a requirement of Texas Transportation Code, Chapter 191. The rule currently requires the Texas Transportation Commission (commission) to consider such a waiver request. However, the department rail division staff receives the waiver requests and determines the safety of proposed clearance deviations, whether any conditions should be imposed, and whether to recommend that the commission approve the request. Requiring the approval from the commission adds several months to the process without increasing safety outcomes. The amendment will permit the department's executive director, or a designee, to issue final approval of the waiver, which will reduce administrative steps and expedite projects without reducing safety.

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

Mr. Jeff Davis, Director, Railroad 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. Davis 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 significant decreases in delays experienced by local governments and shippers for the execution of certain railroad improvement projects, and better, clearer data delivery to planning organizations that will increase emergency preparedness.

COSTS ON REGULATED PERSONS

Mr. Davis 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

Mr. Davis 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. Davis 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 §7.35 and §7.36, 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 "Railroad Safety Rules" The deadline for receipt of comments is 5:00 p.m. on December 16, 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

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, §111.101, which authorizes the commission to adopt rules to implement federal safety laws, and §191.004, which authorizes the commission to adopt rules to implement Transportation Code, Chapter 191, relating to structures and materials near railroad or railway.

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Transportation Code, Chapters 111 and 191.

§7.35.Hazardous Materials--Written Reports.

(a) Policy. It is the policy of the department to provide information regarding the type and quantity of hazardous materials transported within the state to the Texas Division of Emergency Management for use by local emergency planning agencies in areas containing reported railroad operations. It is also department policy to collect such information in order for the department to more efficiently allocate hazardous materials inspection resources. To accomplish these policies, each railroad that transports a hazardous material into, out of, within, or through the state is required to adhere to certain reporting requirements relating to the transportation of hazardous materials.

(b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

~~[(1) Emergency management program--An emergency management program established under Government Code, Chapter 418, Subchapter E.]~~

(1) [~~(2)~~] Hazardous material--Any substance transported by a railroad which is included within the requirements of the railcar placarding regulations adopted by the United States Department of Transportation and published in the C.F.R., Title 49.

(2) [~~(3)~~] Railroad line [~~segment~~ ]--A length of railroad that is designated in the current railroad timetable. The term includes a railroad subdivision, branch line, industrial lead, and spur line. The term does not include a business track. [line over which hazardous materials are transported between two or more municipalities within the state that are also identified as stations on a current railroad timetable. A line segment will terminate at the nearest municipality where the frequency of cars-per-year transporting hazardous materials changes from one category, as defined in subsection (d)(2) of this section, to another.]

(3) [~~(4)~~] Reporting year--Calendar year (January 1-December 31) preceding the year the report is to be submitted.

(c) Reporting requirements. A railroad that transports hazardous materials in or through the state is required to file the following information with the department:

(1) when the department makes a written request, a copy of the report of each hazardous materials incident occurring within the state of Texas that the railroad company files with the United [~~Unites~~] States Department of Transportation under 49 C.F.R. §171.16;

(2) a map delineating the geographical limits of the railroad operating divisions or districts, [~~and~~] the principal operating officer for the railroad in each operating division or district in the state, and the current timetable for railroad operations in the divisions or districts;

(3) a primary and secondary telephone number, which are manned 24 hours per day, for the railroad dispatcher responsible for train operations in each operating division or district in the state;

(4) the name and contact information [~~address~~ ] of each [~~the~~] railroad employee who is responsible for [~~in charge of~~] managing hazardous materials transportation in the state for the railroad; and

(5) for each county, a hazardous materials commodity report that satisfies subsection (d) of this section and that shows each type of hazardous material transported in the state during the reporting year over each railroad line [~~segment~~] owned, leased, or operated by the railroad or railroad line over which hazardous material was transported by trackage rights or haulage rights [~~in the state during the reporting year~~].

(d) Contents of hazardous materials commodity report.

(1) A hazardous materials commodity report, at a minimum, must contain:

(A) the county name;

(B) the railroad line name;

(D) the United Nations (UN)/ North American (NA) number assigned to the hazardous material;

(E) the packing group of the hazardous material;

(F) the proper shipping name of the hazardous material;

(G) the current Emergency Response Guidebook number for the hazardous material, if applicable;

(H) the United States Department of Transportation's hazard class and division for the hazardous material as assigned by 49 C.F.R. Part 173 or the identification designation specified in 40 C.F.R. Part 261;

(I) the total number of residue cars transported in the county during the reporting year;

(J) the total number of loaded cars transported in the county during the reporting year;

(K) the total number of residue intermodal containers transported in the county during the reporting year;

(L) the total number of loaded intermodal containers transported in the county during the reporting year; and

(M) the sum of the numbers reported under subparagraphs (I), (J), (K), and (L) for the county.

(2) The railroad must label a hazardous materials commodity report as sensitive security information if the report contains information defined as sensitive security information under 49 C.F.R. Part 1520.

~~[(1) The type of hazardous material transported shall be identified by hazard class as defined by 49 C.F.R. Part 173, or 40 C.F.R. Part 261.]~~

~~[(2) The quantity of hazardous materials transported shall be classified into the following five categories depending on the number of shipments of hazardous materials transported in a year]:~~

~~[(A) more than 10,000 cars-per-year;]~~

~~[(B) 5,001 to 10,000 cars-per-year;]~~

~~[(C) 1,001 to 5,000 cars-per-year;]~~

~~[(D) 501 to 1,000 cars-per-year;]~~

~~[(E) 51 to 500 cars-per-year;]~~

~~[(F) one to 50 cars-per-year.]~~

~~[(3) Texas counties traversed by each railroad line segment shall be identified.]~~

[(4) The applicable railroad operating division or district shall be identified for each railroad line segment. A railroad line segment shall not traverse more than one railroad operating division or district.]

(e) Reporting dates. Information [~~Reports~~] required by subsection (c)(2) - (5) of this section shall be filed with the department not later than April 1 of each year.

(f) Format. A railroad shall provide the information required by this section in the format [~~Forms. Reporting shall be made as~~] prescribed by the department.

(g) Variance. A railroad may request that the department grant a variance from the requirements of this section. The department shall process the application in accordance with §7.42 of this subchapter (relating to Administrative Review). The department may approve the variance only if the department will continue to receive information concerning the transportation of hazardous materials needed by local emergency planning agencies and needed to efficiently allocate the department's inspection resources. Any exception granted by the department shall be valid for a period not to exceed two years.

§7.36.Clearances of Structures Over and Alongside Railway Tracks.

(a) The lowest part of a structure built over the tracks of a railroad, including a bridge, viaduct, foot bridge, or power line, may not be less than 22 feet above the top of the rails of the tracks.

(b) A structure, including a platform or fence, or material may not be built or placed so that any part of the structure or material is less than 8-1/2 feet from the center line of a railroad track, including a main line, spur, switch, or siding.

(c) The lowest part of a roof projection constructed for any purpose may not be less than 22 feet above the top of the rails of a railroad track and the horizontal edge of the roof projection may not be less than 8-1/2 feet from the center line of the track.

(d) Transportation Code, §191.001 and §191.002 and the requirements of this section do not apply to engine houses or buildings into which locomotives or cars are moved for terminal inspection, attention, or repairs.

(e) Waiver of Provision.

(1) An individual or entity may apply for a waiver from the requirements of Transportation Code, §191.001 and §191.002, or this section, on a form to be prescribed by the department and provided on the department web site.

(2) The department will [~~shall~~] process the application. On a showing of good cause by the applicant and after the department's notice to the attorney general, as required under Transportation Code, §191.005, the executive director or a designee may grant all or a part of [~~and submit it to the commission for final action. The commission shall grant, grant in part, or deny~~] the waiver request. The executive director or a designee [~~commission~~] may require appropriate measures such as posting warning signs and giving notice to railroads that use the facility.

(3) If the applicant does not provide sufficient information to evaluate the waiver request, the executive director or a designee [~~commission~~] will deny the request.

(4) The applicant is not entitled to a contested case hearing, and there is no right to appeal the [~~commission~~] decision on the waiver request.

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 October 31, 2024.

TRD-202405217

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 463-8630

CHAPTER 11. DESIGN

The Texas Department of Transportation (department) proposes the amendments to §§11.51, 11.54, and 11.55, the repeal of §11.53, and new §11.59 and §11.60, all concerning Access Connections to State Highways.

EXPLANATION OF PROPOSED AMENDMENTS, REPEAL, AND NEW SECTIONS

This rulemaking provides the authority for district engineers to approve a driveway permit in an area where the department owns the access rights but only if the driveway can be safely installed and maintained. The grant of this authority provides an alternative to the current process under which a property owner must purchase access rights from the department in such a circumstance.

Amendments to §11.51, Definitions, clarify the definitions of "access connection", "commercial driveway", and "private driveway". The amendments also revise the definition of "executive director" to eliminate references to a position that no longer exists at the department. The definition of "access denial line" is added to identify where the department owns all rights of access from the adjacent property to the state highway.

Section 11.53, Locations Where the Department Controls the Access, is repealed and is replaced with new §11.60, Sale of Access at Locations Where the Department Owns the Access. The new §11.60, Sale of Access at Locations Where the Department Owns the Access, addresses the process by which the commission may sale the right of access to the adjacent landowner.

Amendments to §11.54, Construction and Maintenance of Access Connection Facilities, add subsection (c)(3) to clarify that the department may, but is not required, to reconstruct a driveway that has been permitted across an access denial line pursuant to the new §11.59 (relating to Permit of Access at Locations Where the Department Owns the Access).

Amendments to §11.55, Appeal Process, add a new subsection (b) to clarify that a district engineer's denial of an access permit requested under §11.59 (relating to Permit of Access at Locations Where the Department Owns the Access)is final and not subject to appeal by the property owner requesting such access. The amendments redesignate existing subsection (b) and following subsections and references to those redesignated subsections appropriately.

New §11.59, Permit of Access at Locations Where the Department Owns the Access, sets forth the process by which the district engineer may permit an adjoining landowner to access the state highway in locations where the department owns the access rights. This new section also requires that the adjoining landowner pay a permit fee that is predicated on the type of access being granted prior to the department's issuance of the access permit.

New §11.60, Sale of Access at Locations Where the Department Owns the Access, sets forth the process by which the commission may sale the right of access to the adjacent property owner. This new section is a restatement of the substance of existing §11.53, which is being repealed in this rulemaking to relocate its content to a more logical position within the subchapter.

FISCAL NOTE

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Kyle Madsen, Director, Right of Way 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. Kyle Madsen 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 provide a faster alternative process for adjacent landowners to obtain access in those locations where the department owns the access rights. This alternative method will lower the costs the adjacent landowners must incur to currently obtain access and thus help maintain Texas's probusiness environment.

COSTS ON REGULATED PERSONS

Mr. Madsen 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. The proposed rules and associated fees provide adjacent landowners an alternative method to the current method of purchasing the access rights in order to obtain access to a highway facility in those locations where the department owns all rights of access. This alternative method reduces the burden and responsibilities imposed on persons affected by the rule and provides such a person with an option that decreases the costs for obtaining access to a highway facility in those locations.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS

GOVERNMENT GROWTH IMPACT STATEMENT

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

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 November 25, 2024, in the Ric Williamson Hearing Room, First Floor, Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas 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 the General Counsel Division, 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-8630 at least five working days before the date of the hearing so that appropriate services can be provided.

SUBMITTAL OF COMMENTS

Written comments on the amendments to §§11.51, 11.54, and 11.55, the repeal of §11.53, and new §11.59 and §11.60, 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 "Access Permits" The deadline for receipt of comments is 5:00 p.m. on December 16, 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.

SUBCHAPTER C. ACCESS CONNECTIONS TO STATE HIGHWAYS

43 TAC §§11.51, 11.54, 11.55, 11.59, 11.60

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, §203.031, which provides the commission with the authority to control access to highways.

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Transportation Code, Chapter 203, Subchapter C, Control of Access.

§11.51.Definitions.

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

(1) Access connection--Facility, [~~for entry and/or exit~~] such as a driveway, street, road, or highway, that connects to a highway on the state highway system for entry or exit.

(2) Access denial line--The boundary line between the right-of-way of a state highway and adjacent property where the department owns all rights of access from the adjacent property to the state highway.

(3) [~~(2)~~] Access management standards--The standards, criteria, and specifications prescribed in Chapter 2, Access Management Standards, of the department's Access Management Manual that govern the location, design, construction, and maintenance of access connections.

(4) [~~(3)~~] Commercial driveway--An entrance to[,] or exit from a multifamily residential dwelling or a [~~, any~~] commercial, business, or similar type establishment.

(5) [~~(4)~~] Commission--The Texas Transportation Commission.

(6) [~~(5)~~] Construction of an access connection--The installation, construction, reconstruction, relocation, enlargement, or other material modification of an access connection.

(7) [~~(6)~~] Department--The Texas Department of Transportation.

(8) [~~(7)~~] Design division--The administrative office of the department responsible for the development of engineering design guidance and oversight of projects developed on the state highway system.

(9) [~~(8)~~] Development--The new construction or the enlargement of any exterior dimension of a building, structure, or improvement.

(10) [~~(9)~~] Director--The chief administrative officer in charge of the design division.

(11) [~~(10)~~] District--One of the 25 geographic districts into which the department is divided.

(12) [~~(11)~~] District engineer--The chief administrative officer in charge of the district in which the access connection is located, or that officer's designee.

(13) [~~(12)~~] Eligible county--A county with a population of 3.3 million or more or a county adjacent to a county with a population of 3.3 million or more.

(14) [~~(13)~~] Engineering study--An appropriate level of analysis as determined by the department, which may include a traffic impact analysis, that determines the expected impact that permitting access will have on mobility, safety, and the efficient operation of the state highway system.

(15) [~~(14)~~] Executive director--The executive director of the department, or a designee not below the level of deputy executive director [~~or assistant executive director~~].

(16) [~~(15)~~] Local access management plan--A plan or guideline in a formally adopted rule or ordinance that is related to the application of access management within the municipality's or eligible county's jurisdiction.

(17) [~~(16)~~] Local access road--A local public street or road, generally one parallel to a highway on the state highway system to which access for businesses or properties located between the highway and the local access road is provided as a substitute for access to the highway. A local access road may also be called a lateral road or reverse frontage road, depending on individual location and application.

(18) [~~(17)~~] Permit--Authorization for entry to or exit from a state highway and adjacent real property, issued by the department under Transportation Code, Chapter 203.

(19) [~~(18)~~] Permittee--A real property owner, or the owner's authorized representative, who receives an access connection permit from the department to construct or modify an access connection from the owner's property to a highway on the state highway system.

(20) [~~(19)~~] Platted access point--An access connection identified in a plat or replat of a subdivision of real property properly recorded in the county clerk's office in accordance with Property Code, §12.002.

(21) [~~(20)~~] Private driveway--An entrance to or exit from a single-family residential dwelling, farm, or ranch for the exclusive use and benefit of the permittee.

(22) [~~(21)~~] Public driveway--An approach from a publicly maintained street, road, or highway.

(23) [~~(22)~~] Regionally significant highway--A highway functionally classified as a minor arterial or higher.

(24) [~~(23)~~] Traffic impact analysis--A traffic engineering study to the level of analysis determined by the department that determines the potential current and future traffic impacts of a proposed traffic generator and is signed, sealed, and dated by an engineer licensed to practice in the state of Texas.

(25) [~~(24)~~] Undeveloped property--The real property identified in a plat or replat of a subdivision properly recorded in the county clerk's office in accordance with Property Code, §12.002, on which development has not commenced.

§11.54.Construction and Maintenance of Access Connection Facilities.

(a) Cost for commercial and private driveways. For commercial and private driveways, the cost of materials, installation, construction, reconstruction, relocation, enlargement, modification, and maintenance shall be the responsibility of the permittee, except as otherwise provided in subsection (c) of this section.

(b) Cost for public driveways. For public driveways, the cost of materials, installation, construction, reconstruction, relocation, enlargement, and modification shall be the responsibility of the permittee, except as otherwise provided in subsection (c) of this section. The department shall maintain all portions of public driveways that lie within the state highway right of way and that connect to highways that are the maintenance responsibility of the department.

(1) Any existing access connections that are destroyed or removed in the construction or reconstruction of a section of highway will be reestablished by the department at the expense of the state to the extent necessary to provide reasonable access.

(2) If the department determines that the proposed construction or reconstruction of a section of highway will permanently alter permitted access to or from a state highway at an adjacent property owner's existing driveway location, the department will:

(A) provide the property owner with written notice of the highway project before the 60th day preceding the date construction of the highway project begins; and

(B) at the expense of the state, reinstate the pre-existing access to the most practicable extent possible after due consideration of the impact on highway safety, mobility, and efficient operation, and of any changes to traffic patterns that are likely to result from the highway construction or reconstruction.

(3) Paragraphs (1) and (2) of this subsection do not apply to an access connection that is located across an access denial line for which a permit is issued under §11.59 of this subchapter (relating to Permit of Access at Locations Where the Department Owns the Access). The department may, but is not required to, reconstruct such an access connection.

(d) Inspection. The department may inspect the construction of an access connection at the time the work is being performed and at any time after the work is completed. The permittee or the permittee's heirs, successors, and assigns shall make the changes or repairs that the district engineer reasonably determines are necessary to bring the access connection into compliance with terms and conditions of the permit. A decision to require a change or repair will be in writing, describe the actions to be performed, and provide a reasonable period for compliance.

(e) Drainage and safety. The department may undertake actions deemed necessary to correct drainage or safety problems related to existing or new access connection facilities.

§11.55.Appeal Process.

(a) A property owner or its authorized representative, as the applicant, may file a petition of appeal to contest:

(1) a requirement for a change or repair under §11.54(d) of this subchapter (relating to Inspection);

(2) the denial of a request for a variance under §11.52(e) of this subchapter (relating to Variance);

(3) a finding of significant impact and threat to public safety under §11.52(g) of this subchapter (relating to Remodeled business); or

(4) the denial of a request for a driveway permit under §11.52(b) of this subchapter (relating to Permit requirements).

(b) A district engineer's denial of a request for an access permit under §11.59 of this subchapter (relating to Permit of Access at Locations Where the Department Owns the Access) is final and a property owner has no right to appeal the denial.

(c) [~~(b)~~] The petition must be filed with the director before the 31st day after the date written notice of the denial, requirement, or finding is received by the applicant.

(d) [~~(c)~~] The petition must:

(1) be in writing;

(2) completely and succinctly state the grounds for appeal and its factual basis; and

(3) include sufficient factual documentation, such as drawings, surveys, or photographs, to establish the merits of the appeal.

(e) [~~(d)~~] The applicant has the burden of demonstrating that the department incorrectly applied its access connection requirements to the applicable facts.

(f) [~~(e)~~] For a petition that satisfies the requirements of this section, the director will issue, before the 91st day after the date of receipt of the petition, a written decision approving or disapproving the appeal and, on issuance, immediately send the decision to the applicant. If a written decision is not issued within the 90-day period, the appeal is considered to be approved and the request granted, subject to:

(1) purchase of access rights in accordance with §11.60 [~~§11.53~~] of this subchapter (relating to Sale of Access at Locations Where the Department Controls the Access) if the applicant has no existing right of access; and

(2) consent of the Federal Highway Administration in accordance with 23 C.F.R. §710.401 if the requested access connection is on an interstate highway.

(g) [~~(f)~~] To appeal a decision issued under subsection (f) [~~(e)~~] of this section, the applicant must submit its written petition of appeal to the executive director before the 31st day after the date that written notice of the decision is received. The petition must satisfy the requirements of subsection (d) [~~(c)~~] of this section. The executive director will issue, before the 31st day after the date of receipt of the petition, a written decision approving or disapproving the appeal.

(h) [~~(g)~~] To appeal a decision of the executive director issued under subsection (g) [~~(f)~~ ] of this section, the applicant must submit to the executive director its written petition of appeal to a board of variance, before the 31st day after the date that the executive director's decision under subsection (g) [~~(f)~~] of this section is received. On receipt of the petition, the procedure set out in this subsection applies.

(1) The executive director will appoint a board of variance composed of at least three persons, each of whom is not below the level of department division director, office director, or district engineer and was not involved in the original decision to deny the applicant's request. A majority of the members of the board constitutes a quorum.

(2) The board of variance will meet and consider the appeal. Before the 10th day preceding the date of the meeting, the board will give the applicant notice of the time and place of the meeting and afford the applicant an opportunity to attend and present evidence regarding the appeal.

(3) Before the 11th day after the date of the meeting, the board of variance will issue a final written decision approving or disapproving the appeal.

§11.59.Permit of Access at Locations Where the Department Owns the Access.

(a) Access permit requests. A request for a permit for a new access connection across an access denial line will be considered under this section. The district engineer, in the district engineer's sole discretion, may grant or deny a permit request under this section.

(b) Access permit request contents. A permit request must include:

(1) a description of the development or undeveloped property for which access is being requested;

(2) an engineering study that is acceptable to the department and that shows the safety of the requested access;

(3) all information required under §11.52(b) of this subchapter (relating to Access Connection Facilities); and

(4) any additional information relating to the requested permit that is requested by the department.

(c) Evaluation by the department. A permit request under this section must comply with all other access requirements of this subchapter.

(d) Access permit fees. If a permit request is approved, the requester must pay a permit fee in accordance with this subsection before the department will issue an access permit.

(1) The fee for a permit for a private driveway access is $250.

(2) The fee for a permit for a commercial driveway access is based on the most recent unadjusted market value of the land and improvements on the benefitted property determined by the local appraisal district established under Tax Code, Chapter 6, Subchapter A. The fee is:

Figure: 43 TAC §11.59(d)(2) (.pdf)

(e) No rights of access conveyed. The issuance of a permit under this section does not convey any property right, including a right of access to the highway facility. The department, in its sole discretion, may revoke a permit issued under this section on its determination that the access location is needed for a highway purpose. Such a revocation may not be the basis for any claim of a constitutional taking of property for the loss of access to the highway facility.

§11.60.Sale of Access at Locations Where the Department Owns the Access.

(a) Access purchase request. A request to purchase a new access connection to a highway across an access denial line will be considered under this section. The request must include an engineering study acceptable to the department.

(b) Determination. The commission will make the final determination concerning the sale of access rights under this section. The commission may consider the findings of the engineering study, the mobility and safety of the highway system, and any other relevant factors.

(c) Sale procedure. A sale of access rights under this section is subject to Transportation Code, Chapter 202, Subchapter B. Access points approved by the commission under this section will be specifically described by a metes and bounds property description.

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 October 31, 2024.

TRD-202405218

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: December 15, 2024

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

43 TAC §11.53

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, §203.031, which provides the commission with the authority to control access to highways.

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Transportation Code, Chapter 203, Subchapter C, Control of Access

§11.53.Locations Where the Department Controls the Access.

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 October 31, 2024.

TRD-202405219

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: December 15, 2024

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

CHAPTER 28. OVERSIZE AND OVERWEIGHT VEHICLES AND LOADS

SUBCHAPTER A. GENERAL PROVISIONS

43 TAC §28.2, §28.4

The Texas Department of Transportation (department) proposes the amendments to §28.2 and new §28.4 concerning Oversize and Overweight Vehicles and Loads.

EXPLANATION OF PROPOSED AMENDMENTS

After the legislature's creation of the Texas Department of Motor Vehicles (DMV), some of the department's duties and rules were transferred to the DMV, including the provision relating to permits issued for the movement of oversize vehicles on specified holidays. DMV recently identified that it does not have the statutory authority for such a provision and is in the process of changing its rules to delete the provision. The statutory authority to place holiday restrictions on oversize and overweight vehicles was not changed by the transfer of duties to the DMV and remains with the commission. This rulemaking clarifies that the size limitations previously established by the commission for the movement of oversize vehicles on specified holidays continue in effect.

Amendments to §28.2, Definitions, corrects an error in the definition of "permittee" in paragraph (11). Permits for oversize or overweight vehicles are issued by the DMV.

New §28.4, Holiday restrictions on size limits, clarifies that the maximum size limits for a permit issued for movement of a vehicle on New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, or Christmas Day is 14 feet wide, 16 feet high, and 110 feet long, unless an exception is granted based on a route and traffic study conducted by the department.

FISCAL NOTE

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 convenience and public safety.

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 §28.2 and new §28.4 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 "Oversize vehicle limits on holidays." The deadline for receipt of comments is 5:00 p.m. on December 16, 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

The new rule and 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, §621.006, which authorizes the commission to impose restrictions on the weight and size of vehicles to be operated on state highways on specified holidays.

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Transportation Code, §621.006.

§28.2.Definitions.

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

(1) Axle--The common axis of rotation of one or more wheels whether power-driven or freely rotating, and whether in one or more segments.

(2) Axle group--An assemblage of two or more consecutive axles, with two or more wheels per axle, spaced at least 40 inches from center of axle to center of axle, equipped with a weight-equalizing suspension system that will not allow more than a 10% weight difference between any two axles in the group.

(3) Commission--The Texas Transportation Commission.

(4) Daylight--The period beginning one-half hour before sunrise and ending one-half hour after sunset.

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

(6) Four-axle group--Any four consecutive axles, having at least 40 inches from center of axle to center of axle, whose extreme centers are not more than 192 inches apart and are individually attached to or articulated from, or both, to the vehicle by a weight equalizing suspension system.

(7) Gross weight--The unladen weight of a vehicle or combination of vehicles plus the weight of the load being transported.

(8) Motor carrier--A person that controls, operates, or directs the operation of one or more vehicles that transport persons or cargo over a public highway in this state.

(9) Overweight--An overdimension load that exceeds the maximum weight specified in Transportation Code, §621.101.

(10) Permitted vehicle--A vehicle, combination of vehicles, or vehicle and its load operating under the provisions of a permit.

(11) Permittee--Any person, firm, or corporation that is issued an oversize/overweight permit or temporary vehicle registration by the Texas Department of Motor Vehicles [~~MCD~~].

(12) Single axle--An assembly of two or more wheels whose centers are in one transverse vertical plane or may be included between two parallel transverse planes 40 inches apart extending across the full width of the vehicle.

(13) State highway--A highway or road under the jurisdiction of the Texas Department of Transportation.

(14) State highway system--A network of roads and highways as defined by Transportation Code, §221.001.

(15) Surety bond--An agreement issued by a surety bond company to a principal that pledges to compensate the department for any damage that might be sustained to the highways and bridges by virtue of the operation of the equipment for which a permit was issued. A surety bond is effective the day it is issued and expires at the end of the state fiscal year, which is August 31st. For example, if you obtain a surety bond on August 30th, it will expire the next day at midnight.

(16) Three-axle group--Any three consecutive axles, having at least 40 inches from center of axle to center of axle, whose extreme centers are not more than 144 inches apart, and are individually attached to or articulated from, or both, to the vehicle by a weight equalizing suspension system.

(17) Trunnion axle--Two individual axles mounted in the same transverse plane, with four tires on each axle, that are connected to a pivoting wrist pin that allows each individual axle to oscillate in a vertical plane to provide for constant and equal weight distribution on each individual axle at all times during movement.

(18) Two-axle group--Any two consecutive axles whose centers are at least 40 inches but not more than 96 inches apart and are individually attached to or articulated from, or both, to the vehicle by a weight equalizing suspension system.

(19) Vehicle--Every device in or by which any person or property is or may be transported or drawn upon a public highway, except devices used exclusively upon stationary rails or tracks.

§28.4.Holiday Restrictions on Size Limits.

The maximum size limits for a permit issued under Transportation Code, Chapter 623, Subchapter D, for movement of a vehicle on a holiday listed in Transportation Code, §621.006, is 14 feet wide, 16 feet high, and 110 feet long, unless an exception is granted based on a route and traffic study conducted 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 October 31, 2024.

TRD-202405216

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 463-8630