PART 1. TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 6. STATE INFRASTRUCTURE BANK
The Texas Department of Transportation (department) adopts the amendments to §§6.2 - 6.4, 6.12, 6.23, 6.32, 6.41 - 6.43, and 6.45, concerning the state infrastructure bank. The amendments to §§6.2 - 6.4, 6.12, 6.23, 6.32, 6.41 - 6.43, and 6.45 are adopted without changes to the proposed text a published in the July 12, 2024, issue of the Texas Register (49 TexReg 5006) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Amendments to §§6.2 - 6.4, 6.12, 6.23, 6.32, 6.41 - 6.43, and 6.45, provide conforming changes to Texas Transportation Code, Chapter 222, Subchapter D, clean up outdated provisions, clarify the intent of multiple sections of Chapter 6, and provide efficiencies for the department and borrowers from the state infrastructure bank (SIB).
Amendments to §6.2, Definitions, delete the reference to "Environmental Affairs Divisions Operations and Procedures Manual" in §6.2(5)(B) because the manual is not used for these rules and delete the definition of "Interoperability" as it is used in the rules.
Amendments to §6.3, General Policies, include amend subsection (f) to allow a borrower to request reimbursement of eligible project costs if incurred not more than 12 months prior to the execution of the financial assistance agreement evidencing the financial assistance. Costs are required to be approved by the department and funds will not be disbursed until the financial assistance agreement has been executed by both parties.
Amendments to §6.4, Separate Subaccounts, clean up subsection (b) to indicate that the highway and transit subaccounts "may be capitalized" with state and federal funds instead of "is capitalized" with state and federal funds. Currently the transit account is not funded.
Amendments to §6.12, Eligible Projects, modify an eligible project for which secondary funds may be used to "a project eligible for assistance under Title 23 or Title 49, USC." This language aligns with Texas Transportation Code, §222.071(5).
Amendments to §6.23, Application Procedure, removes part of subsection (b)(3)(A) and removes subsections (b)(3)(B-C), which require the applicant to submit information about the consistency of the project with certain statewide plans as well as identify the environmental impacts of the project. The amendments are made to conform with the changes made in §6.32(c),and §6.32(d) along with other provisions that require environmental reviews be completed before execution of a SIB agreement.
Amendments to §6.32, Commission Action, make various changes to the rules related to commission actions concerning financial assistance from the SIB. Changes to subsection (b)(2) add "financial condition of the bank" as a consideration for the Commission when determining whether to waive preliminary approval of a loan. Additionally, the changes make the commission's consideration of the listed factors permissive.
Changes to subsection (c) allow the executive director of the department to suspend the deadlines for applications that need to be considered for preliminary approval. Currently, the preliminary approval process is not needed and the rules do not allow for the deadlines to be suspended. The changes provide the executive director flexibility when available SIB funds are sufficient to cover all requests. Additionally, paragraph (1)(D) is removed to conform with the changes in §6.32(d).
In subsection (d), changes are made to require that SIB loans will conform to the environmental requirements outlined in Chapter 2 of Title 43 of the Texas Administrative Code (relating to Environmental Review of Transportation Projects), if the project meets the applicability thresholds in 43 TAC §2.3. Changes further indicates that any required environmental review must be completed before construction begins, excluding construction activities in Title 23, United States Code, §101(a)(4)(A) and that the applicant will be responsible for the environmental review unless the department agrees otherwise. This change is meant to allow for SIB loans to be used for preliminary project activities defined in Title 23, United States Code, which include preliminary engineering, engineering, and design-related services directly relating to the construction of a highway project, including engineering, design, project development and management, construction project management and inspection, surveying, assessing resilience, mapping (including the establishment of temporary and permanent geodetic control in accordance with specifications of the National Oceanic and Atmospheric Administration), and architectural-related services. This change is also part of other changes that will require environmental reviews to be completed before execution of the agreement; these changes will create efficiencies in the process.
Amendments to subsection (c)(2) remove the requirement of project consistency with certain statewide planning documents. Deleting this requirement will remove a burden for projects that is not required in statute. Statute only requires inclusion in the MPO plan.
Amendments to subsection (e) remove references to the environmental impacts of a project to conform to the change in §6.32(d).
Changes to subsection (g) remove the examples of the types of actions that the commission may require an applicant to take to receive financial assistance from the SIB to clarify that "further actions" are not limited to the listed examples.
Amendments to §6.41, Financial Assistance Agreements, provide that funds will not be disbursed for construction, excluding activities in Title 23, United States Code, §101(a)(4)(A), until an environmental review under Chapter 2 is complete, if required. This change aligns with TxDOT's environmental review standards to require an environmental review for construction and right of way activities while not requiring a completed study for preliminary engineering and design related activities. This will allow communities to use the SIB for these activities.
Additional changes to the section clarify that the repayment of financial assistance provided from the SIB will begin within 18 months of the date of initial funds disbursement rather than "on the earliest reasonable date consistent with applicable federal and state law, rules, and regulations." The rules allow the commission to defer the initial repayment but was not clear when that approval was needed. This change will remove the ambiguity of when approval is needed for a payment deferral.
Amendments to §6.42, Performance of Work, repeal the requirement that the department will set aside funds internally for the borrower when the department provides work on project on behalf of the applicant. The department has chosen not to do this practice and this repeal aligns the rules with the department's practice. The amendments move subsections (b)(2), (3), and (5) to §6.45, Financial and Credit Requirements, and amend existing §6.45(b)(4), which is redesignated as subsection (b)(2), to remove the different requirements based on the size of the loan. These amendments standardize the financial requirements (annual budget and audit) for all loans and borrowers.
Amendments to §6.43, Design, Construction, and Procurement Standards, remove federal-aid projects from the design requirements and instead differentiate the standards between projects on the state highway system and off the state highway system. As amended, subsection (a) is applicable to projects on the state highway system and will continue to adhere to department design standards, while new subsection (b) requires projects not on the state highway system to conform to American Association of State Highway and Transportation Officials (AASHTO) design standards. This changes align the rules with recognized department practices.
Amendments to §6.45, Financial and Credit Requirements, are explained under the explanation for the amendments to §6.43, Design, Construction, and Procurement Standards.
COMMENTS
No comments on the proposed amendments were received.
SUBCHAPTER A. GENERAL PROVISIONS
STATUTORY AUTHORITY
The amendments are adopted 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, §222.077, which authorizes the commission to adopt rules to implement Transportation Code, Chapter 222, Subchapter D relating to the state infrastructure bank.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, Chapter 222, Subchapter D.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on September 26, 2024.
TRD-202404639
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: October 16, 2024
Proposal publication date: July 12, 2024
For further information, please call: (512) 463-8630
STATUTORY AUTHORITY
The amendments are adopted 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, §222.077, which authorizes the commission to adopt rules to implement Transportation Code, Chapter 222, Subchapter D relating to the state infrastructure bank.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, Chapter 222, Subchapter D.
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 September 26, 2024.
TRD-202404640
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: October 16, 2024
Proposal publication date: July 12, 2024
For further information, please call: (512) 463-8630
STATUTORY AUTHORITY
The amendments are adopted 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, §222.077, which authorizes the commission to adopt rules to implement Transportation Code, Chapter 222, Subchapter D relating to the state infrastructure bank.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, Chapter 222, Subchapter D.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on September 26, 2024.
TRD-202404641
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: October 16, 2024
Proposal publication date: July 12, 2024
For further information, please call: (512) 463-8630
STATUTORY AUTHORITY
The amendments are adopted 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, §222.077, which authorizes the commission to adopt rules to implement Transportation Code, Chapter 222, Subchapter D relating to the state infrastructure bank.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, Chapter 222, Subchapter D.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on September 26, 2024.
TRD-202404642
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: October 16, 2024
Proposal publication date: July 12, 2024
For further information, please call: (512) 463-8630
STATUTORY AUTHORITY
The amendments are adopted 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, §222.077, which authorizes the commission to adopt rules to implement Transportation Code, Chapter 222, Subchapter D relating to the state infrastructure bank.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, Chapter 222, Subchapter D.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on September 26, 2024.
TRD-202404643
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: October 16, 2024
Proposal publication date: July 12, 2024
For further information, please call: (512) 463-8630
SUBCHAPTER E. TRANSPORTATION ENHANCEMENT PROGRAM
The Texas Department of Transportation (department) adopts the repeal of §§11.200 - 11.221 concerning Transportation Enhancement Program. The repeal of §§11.200 - 11.221 is adopted without changes to the proposed text as published in the July 12, 2024, issue of the Texas Register (49 TexReg 5015) and will not be republished.
EXPLANATION OF ADOPTED REPEAL
Sections 11.200 - 11.221 (Chapter 11, Subchapter E, Transportation Enhancement Program) prescribe the policies and procedures for the implementation of the federal Transportation Enhancement Program. The Transportation Enhancement Program was replaced by the Transportation Alternatives Program (TAP) in the federal Moving Ahead for Progress in the 21st Century Act in 2012. Chapter 11, Subchapter F, Transportation Alternatives Program (§§11.300 - 11.317), prescribe the policies and procedures for the implementation and administration of TAP.
No new projects have been submitted under the Transportation Enhancement Program since August 2012, nor authorized for funding under the program since August 2016. Therefore, §§11.200 - 11.221 are no longer needed and are being repealed.
COMMENTS
No comments on the proposed repeal were received.
STATUTORY AUTHORITY
The repeals are adopted 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.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
None.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on September 26, 2024.
TRD-202404635
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: October 16, 2024
Proposal publication date: July 12, 2024
For further information, please call: (512) 463-8630
SUBCHAPTER K. ACKNOWLEDGMENT PROGRAM
The Texas Department of Transportation (department) adopts amendments to §§12.351 - 12.355, relating to the Acknowledgment Program. The amendments to §§12.351 - 12.355 are adopted without changes to the proposed text in the July 12, 2024, issue of the Texas Register (49 TexReg 5016) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Amendments to §§12.351-12.355 include edits to clarify and streamline existing language throughout, and propose new language to implement the authority granted by Senate Bill 2200, 88th Legislature, Regular Session 2023. SB 2200 permits the department to publicly acknowledge certain donations made to the department. Specifically, if a person makes a donation to the department's roadside assistance and safety service patrol program, the department may acknowledge the donation on a vehicle or equipment used by the program. Through the roadside assistance and safety service patrol, the department offers, as a free service, roadside assistance to clear minor crashes and debris and to assist motorists in need.
Amendments to §12.351, Purpose, add the department's roadside assistance and safety service patrols as highway-related services eligible for the state acknowledgement program.
Amendments to §12.352, Definitions, expand the term "acknowledgment" to also include an acknowledgment decal and add the definition of "acknowledgement decal" as a term used in the subchapter.
Amendments to §12.353, Acknowledgment Program, add the new statutory requirement that a public acknowledgment may not contain comparative or qualitative descriptions of a product, service, facility, or company.
Amendments to §12.354, Acknowledgment Program Vendor Contract; Program Agreement, require that the number and service area of vehicles with acknowledgment decals be included in the vendor's contract with the donor and in the information provided by the vendor to the department. The vendor is required to receive approval from the department for the vehicles to receive decals.
Amendments to §12.355, Acknowledgment Sign, add decals to the methods of acknowledgment, and outline general decal approval, location, and design requirements to ensure decals do not affect the safety of the traveling public. The section heading is changed to "Acknowledgment Signs and Decals" to describe the content of the section with those changes.
COMMENTS
No comments on the proposed amendments were received.
STATUTORY AUTHORITY
The amendments are adopted 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, under Texas Transportation Code, §201.206, which authorizes the commission to enact rules concerning the acknowledgment of donations under that section.
The authority for the adopted amendments is provided by S.B. No. 2200, 88th Regular Session, 2023. The primary author and the primary sponsor of that bill are Sen. Kelly Hancock and Rep. Caroline Harris, respectively.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, §201.206
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on September 26, 2024.
TRD-202404636
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: October 16, 2024
Proposal publication date: July 12, 2024
For further information, please call: (512) 463-8630
SUBCHAPTER B. PROCEDURES FOR ESTABLISHING SPEED ZONES
The Texas Department of Transportation (department) adopts the repeal of §25.27 and enactment of new §25.27 concerning Variable Speed Limits. The repeal of §25.27 and new §25.27 are adopted without changes to the proposed text as published in the July 12, 2024, issue of the Texas Register (49 TexReg 5019) and will not be republished.
EXPLANATION OF PROPOSED REPEAL and REPLACEMENT WITH NEW SECTION
Repeal of §25.27, a pilot Variable Speed Limits program which expired February 1, 2015, is necessary to establish new §25.27, a Variable Speed Limits program, with authority granted through House Bill 1885, 88th Legislature, Regular Session, 2023, which added Transportation Code, §545.353(k).
New §25.27, Variable Speed Limits, establishes the procedures for a new variable speed limits program that will improve traffic safety by allowing the temporary lowering of a prima facie speed limit to address any conditions that affect the safe and orderly movement of traffic on a roadway. Under Transportation Code, §545.353(k), a speed limit that is established under the program must be based on an engineering and traffic investigation. However, because the prima facie speed limits for roadways are established with thorough engineering and traffic investigations, an 85th percentile speed study is not required. The district engineer may determine the appropriate reduction of no more than 10 miles per hour below the prima facie speed limit using engineering judgment based on other commonly-accepted investigation methods, such as the determination of a spot speed within the affected area, speed-over-distance readings from automated field technology, sight distance during inclement weather, or traffic flow obtained by either field investigation or automated technology. The lower speed limit is effective only when the speed limit is posted. New §25.27 also prohibits the lowering of an established prima facie speed limit under this section to divert traffic to a toll road for the purpose of increasing revenue from toll charges, as required by the statute.
In addition to the items required by statute, new §25.27 requires the department to document all changes made to prima facie speed limits under this section and the dates of those changes to maintain an official record. The new rule requires coordination with state and local law enforcement regarding the locations and amount of the speed reductions in order to support speed limit enforcement.
COMMENTS
No comments on the proposed repeal and new section were received.
STATUTORY AUTHORITY
The repeal is adopted 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, Texas Transportation Code, §545.353, which grants the commission authority to adopt rules necessary to implement the Variable Speed Limit program.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, §545.353
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on September 26, 2024.
TRD-202404637
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: October 16, 2024
Proposal publication date: July 12, 2024
For further information, please call: (512) 463-8630
STATUTORY AUTHORITY
The new section is adopted 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, Texas Transportation Code, §545.353, which grants the commission authority to adopt rules necessary to implement the Variable Speed Limit program.
CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING
Transportation Code, §545.353
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on September 26, 2024.
TRD-202404638
Becky Blewett
Deputy General Counsel
Texas Department of Transportation
Effective date: July 12, 2024
Proposal publication date: October 16, 2024
For further information, please call: (512) 463-8630