PART 1. TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 2. ENVIRONMENTAL REVIEW OF TRANSPORTATION PROJECTS
The Texas Department of Transportation (department) adopts amendments to §2.12, Project Coordination, and §2.103, Public Participation for an Environmental Impact Statement or Supplemental Environmental Impact Statement. The amendments to §2.12 and §2.103 are adopted without changes to the proposed text as published in the February 15, 2013, issue of the Texas Register (38 TexReg 793) and will not be republished. The effective date of these amendments is September 1, 2013.
EXPLANATION OF ADOPTED AMENDMENTS
Transportation Code, §201.607 requires the department to adopt a memorandum of understanding (MOU) with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historic or archeological resources. Transportation Code, §201.607 also requires the department to adopt the MOU and all revisions to it by rule and to periodically evaluate and revise the MOU. In order to meet the legislative intent and to ensure that natural resources are given full consideration in accomplishing the department's activities, the department is repealing existing Subchapter B and adopting new Subchapters G, H, and I, relating to Memorandum of Understanding with the Texas Parks and Wildlife Department, Memorandum of Understanding with the Texas Historical Commission, and Memorandum of Understanding with the Texas Commission on Environmental Quality, respectively.
The amendments change the current references to 43 TAC Chapter 2, Subchapter B in the department's rules so that the sections will reference the appropriate new provisions that are replacing Subchapter B. The amendments to §2.12(b) change the reference in that section from Subchapter B to new Subchapters G, H, and I. The amendments to §2.103(d)(2)(B) and (g)(2) change the references in those subsections from Subchapter B to new Subchapters G, H, and I.
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 with the authority to establish rules for the conduct of the work of the department.
CROSS REFERENCE TO STATUTE
Transportation Code, §201.607.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 31, 2013.
TRD-201302220
Jeff Graham
General Counsel
Texas Department of Transportation
Effective date: September 1, 2013
Proposal publication date: February 15, 2013
For further information, please call: (512) 463-8683
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department.
CROSS REFERENCE TO STATUTE
Transportation Code, §201.607.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 31, 2013.
TRD-201302221
Jeff Graham
General Counsel
Texas Department of Transportation
Effective date: September 1, 2013
Proposal publication date: February 15, 2013
For further information, please call: (512) 463-8683
The Texas Department of Transportation (department) adopts the repeal of §2.21, Purpose, and §2.22, Memorandum of Understanding with the Texas Parks and Wildlife Department. The department simultaneously replaces the repealed sections with new Subchapter G, §§2.201 - 2.214, Memorandum of Understanding with the Texas Parks and Wildlife Department. The repeal of §2.21 and §2.22 and new §§2.203 - 2.205, 2.207, and 2.209 - 2.214 are adopted without changes to the proposed text as published in the February 15, 2013, issue of the Texas Register (38 TexReg 794) and will not be republished. New §§2.201, 2.202, 2.206, and 2.208 are adopted with changes to the proposed text as published in the February 15, 2013, issue of the Texas Register (38 TexReg 794). The effective date for both the repeals and new sections is September 1, 2013.
EXPLANATION OF ADOPTED REPEALS AND NEW SECTIONS
Transportation Code, §201.607 requires the department to adopt a memorandum of understanding (MOU) with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historic or archeological resources. Transportation Code, §201.607 also requires the department to adopt the MOU and all revisions to it by rule and to periodically evaluate and revise the MOU. In order to meet the legislative intent and to ensure that natural resources are given full consideration in accomplishing the department's activities, the department has evaluated its MOU with the Texas Parks and Wildlife Department (TPWD) adopted in 1999, and finds it necessary to repeal existing §2.21 and §2.22 and simultaneously adopt new Subchapter G, §§2.201 - 2.214.
The adopted new MOU between TPWD and the department satisfies the statutory requirements for reviewing and revising MOUs with resource agencies. It is intended to replace the existing MOU, which has been in effect since March 21, 1999, with an MOU that more effectively streamlines TPWD's review of the department's projects and simultaneously better allows TPWD to focus on those projects most likely to affect natural resources. The adopted MOU has several new provisions and procedures that were developed based on experience gained from numerous projects that the department has submitted and TPWD has reviewed since the 1999 MOU was executed. It is also better organized than the existing MOU, with different subject areas broken into separate sections. Additionally, the adopted MOU reflects changes made by the department's recent revision of its environmental review rules, published in the March 9, 2012, issue of the Texas Register (37 TexReg 1727).
SECTION BY SECTION EXPLANATION OF ADOPTED MOU
Section 2.201 sets out the purpose of the MOU and explains that it supersedes various other MOUs previously entered into by the department and TPWD. Section 2.201 also requires the MOU to be updated within five years of its effective date, as required by Transportation Code, §201.607.
Section 2.202 sets forth the applicability of the MOU by identifying the types of transportation projects that must be evaluated under the MOU. Maintenance projects for which a programmatic environmental review is conducted under 43 TAC §2.133 are not required to be evaluated under the MOU.
Section 2.203 contains definitions of various terms used in the MOU.
Section 2.204 sets parameters on the department's use of the Texas Natural Diversity Database (TXNDD) maintained by TPWD, a database of information about listed and proposed threatened and endangered species and other features of Texas natural history. The section also requires the department to report observations of certain species to TPWD using TXNDD reporting forms.
Section 2.205 sets forth procedures for determining whether the department is required to coordinate a given transportation project with TPWD. It requires the department to perform a Tier I site assessment on each project to which the MOU applies as set forth in §2.202. The department then compares the results of the Tier I site assessment to triggers listed in §2.206, and thresholds identified in a programmatic agreement developed under §2.213, to determine whether coordination is required.
Section 2.206 contains triggers for determining when coordination is required using the procedures identified in §2.205. For example, coordination is required if a project will directly impact known isolated wetlands outside the existing department right-of-way. Use of these triggers, and the thresholds identified in a programmatic agreement developed under §2.213, will allow TPWD to focus its resources on reviewing those projects most likely to adversely affect natural resources. Note that a clarifying revision has been made to the proposed version of §2.206(6). The words "at least" have been inserted to more clearly indicate that projects impacting more than 0.10 acre of riparian vegetation are subject to coordination.
Section 2.207 explains the process for early coordination of a project between TPWD and the department. It is the intention of the department and TPWD that early coordination, as opposed to administrated coordination under §2.208, will be the primary mechanism for coordination of projects between the agencies. In conducting early coordination, the department provides project documentation to TPWD, and TPWD provides determinations and recommendations to the department. The results of early coordination are then summarized in the project's environmental review document. The process for early coordination is less formal than the process for administrated coordination, explained in the following section.
Section 2.208 explains the process for administrated coordination, which must be conducted for projects subject to coordination under §2.205, but for which early coordination under §2.207 is not conducted. Administrated coordination requires the department to submit to TPWD a coordination package consisting of a cover letter, a Tier II site assessment, and other studies or reports the department believes are relevant. TPWD then has 45 days to comment on any aspect of the project it determines may have adverse impacts to fish and wildlife resources. Within 90 days of making a decision related to a written comment made by TPWD, the department must provide TPWD with a written explanation of the department's decision or other action. Also, as with early coordination, the results of administrated coordination must be summarized in the project's environmental review document.
Section 2.209 explains Tier II site assessments, which are the primary environmental reports prepared by the department and reviewed by TPWD during administrated coordination, and provides the minimum required elements of a Tier II site assessment.
Section 2.210 requires the department to communicate with TPWD when unforeseen impacts are identified during construction of a project.
Section 2.211 requires the department to maintain records of projects that are subject to the MOU and to respond within 30 days to any request made by TPWD to review project records.
Section 2.212 allows TPWD to make site visits to department project sites.
Section 2.213 requires the department and TPWD to develop certain programmatic agreements addressing issues not covered in the MOU. The section describes six specific programmatic agreements that must be developed by the department and TPWD.
Section 2.214 requires the department and TPWD to appoint an interagency MOU implementation team to fulfill various functions related to implementing the MOU, such as developing the programmatic agreements required by §2.213, preparing recommendations for the next update of the MOU, and developing metrics for tracking the effectiveness of the MOU.
Since publication of the proposed rulemaking, the department and TPWD have agreed on an effective date for the MOU of September 1, 2013. The department has added §2.201(e) to indicate that effective date and to address the transition from the pre-existing MOU to the new one. Projects for which coordination with TPWD has been initiated prior to September 1, 2013 will complete coordination under the procedures of the pre-existing MOU. Projects for which coordination with TPWD has not been initiated prior to September 1, 2013 will be governed by this MOU.
COMMENTS
Comments were received from Valerie Covey, Williamson County Commissioner for Precinct 3, and Josephine Jarrell.
Comment: Commissioner Covey expressed concerns about a lack of clarity and assurance with regard to the use of programmatic agreements.
Response: The department believes that programmatic agreements are the most effective mechanism for agreeing on certain parameters and protocols concerning TPWD's review of department projects, such as the specific best management practices to be employed by the department in consideration of potential impacts on certain species. While the framework for TPWD's review process is set out in the MOU, programmatic agreements will allow the department and TPWD to memorialize mutual understandings on particular topics in greater detail than would be appropriate in the MOU itself, without having to re-assert those understandings on a project-specific basis. They may also provide the department and TPWD with the flexibility to make adjustments to certain mutual understandings as opportunities for increased efficiency and effectiveness become apparent.
Comment: Regarding the coordination trigger in §2.206 concerning species of greatest conservation need (SGCN), Commissioner Covey commented that SGCN are not regulated, and there is not sufficient information about status and habitat to develop best management practices (BMPs) to avoid coordination with TPWD. Commissioner Covey further commented that the trigger would require TPWD to review more projects and should be deleted.
Response: TPWD may comment on a project's potential impacts to non-regulated species in addition to impacts on regulated species. The department believes that there is sufficient information about many SGCNs to develop BMPs, which it expects to significantly reduce the number of projects that would otherwise be referred to TPWD under this trigger. The department is committed to reducing the overall number of projects that are referred to TPWD for comment, while focusing on those projects of greatest interest to TPWD. TPWD representatives have expressed to the department that TPWD is also committed to achieving that goal. Given that the trigger provides for use of BMPs to substitute for referral, the department believes that the trigger is appropriate. However, Commissioner Covey's comment brought to light the need for certainty with respect to which county list of Rare and Protected Species should be used to identify SGCNs that could trigger coordination on a given project. The department, with TPWD's approval, has amended §2.206(1) to indicate that the list as it exists on the day the agreed-upon project scope is finalized, or if there is no project scope and for reevaluations, as it exists when TxDOT makes its determination regarding whether coordination is required, is the one that should be used to determine coordination for that project.
Comment: Commissioner Covey commented that TPWD's review period for administrated project coordination should be 30 days, rather than 45 days. Commissioner Covey further commented that, under proposed §2.208, TPWD's review period could be extended to 50 days because the 45-day review period would not begin until five days after transmittal.
Response: TPWD has indicated that it cannot agree to a review period for administrated project coordination of less than 45 days. In response to Commissioner Covey's comment about the deadline being extended to 50 days, the department has, with TPWD's approval, revised §2.208(f) to require TPWD to notify the department by email when it receives the coordination package for review. The 45-day review period begins on the day that email is sent, or five business days after the date of transmittal of the coordination package, whichever occurs first.
Comment: Commissioner Covey commented that the proposed MOU did not adequately address local government project sponsors' ability to coordinate directly with TPWD.
Response: With TPWD's approval, the department has added new §2.202(c). It provides that, for those projects for which TxDOT allows a local government to be the project sponsor under §2.47 of the department's rules, the local government sponsor may use the procedures specified in this MOU to coordinate directly with TPWD, subject to TPWD approval on a case-by-case basis.
Comment: Josephine Jarrell commented that there are discrepancies in the definitions of "state transportation project" and "transportation project," and that both of those definitions differ from the definition of "transportation projects" in the pre-existing MOU that is being repealed.
Response: For consistency, the department and TPWD are using the definitions of "state transportation project" and "transportation project" adopted by the department in February 2012 and codified at 43 TAC §2.5, Definitions. The terms have different definitions because they are intended to have different meanings. A "state transportation project" is a type of "transportation project" that is not a major federal action for the purpose of the National Environmental Policy Act.
Comment: Josephine Jarrell commented that "transportation facilities" as used in the definition of "construction" is not defined.
Response: The comment appears to refer to the pre-existing MOU that is being repealed, as the term "construction" is not defined in the adopted MOU.
Comment: Josephine Jarrell commented that aviation, public transit, and rail projects may have different requirements than FHWA, as they are funded by other Department of Transportation agencies, and asked whether the department's Aviation, Public Transit, and Rail Division staff were part of the negotiations with TPWD.
Response: As indicated by §2.202(1) - (4) and the definitions of "state transportation project" and "FHWA transportation project" in §2.203, the MOU does not expressly apply to projects funded by department of transportation agencies other than FHWA. This is consistent with the applicability of the department's general environmental review rules. See 43 TAC §2.3, Applicability; Exceptions. However, the department has the option of coordinating aviation, public transit, and rail projects under the MOU, as provided in §2.202(5). The department's Environmental Affairs Division staff conducted the negotiations with TPWD on behalf of all department districts and divisions.
Comment: Josephine Jarrell commented that list of degrees in the definition of "qualified biologist" should be expanded to include a Bachelor of Arts or Bachelor of Science degree in Environment Science.
Response: The department declines to make the requested change. A degree in Environment Science may or may not include a sufficient biology component to qualify an individual as a qualified biologist. However, note that, under the definition, individuals with a degree in a field closely related to the listed fields of study may qualify as a qualified biologist based on the nature of their specific course of study.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The department determined that this rulemaking relates to actions subject to the Texas Coastal Management Program (CMP) under the Coastal Coordination Act of 1991, as amended (Natural Resources Code, §§33.201 et seq.), and must be consistent with all applicable CMP policies, because it concerns the department's environmental review of transportation projects. The department reviewed this action for consistency with the CMP goals and policies under the rules promulgated by the Coastal Coordination Council, which remain in effect until superseded by rules of the General Land Office. The department has determined that the action is consistent with applicable CMP goals and policies.
A CMP policy applicable to this rulemaking is that transportation projects shall comply with certain practices concerning the siting of a project to lessen the impacts on coastal natural resources (see 31 TAC §501.31). The rules concern the method by which to evaluate the environmental impacts of a transportation project and do not dictate the siting of a project. However, the purpose of the rules is to establish procedures for identifying the impacts of transportation projects on certain resources and for coordination of projects with the relevant state resource agency. This provides an additional mechanism for avoiding, minimizing, or mitigating, where practicable, adverse effects of department projects on coastal natural resource areas that serve as habitat, on coastal preserves, and on threatened and endangered species. For these reasons, the rulemaking action is consistent with the CMP goal of protecting, preserving, restoring, and enhancing the diversity, quality, quantity, functions, and values of coastal natural areas.
A copy of the proposed rulemaking was submitted to the General Land Office for its comments on the consistency of the rulemaking with the CMP. The department also requested that the public give comment on whether the rulemaking is consistent with the CMP. The General Land Office did not comment on the rulemaking, and no public comment concerned this matter.
SUBCHAPTER B. MEMORANDA OF UNDERSTANDING WITH NATURAL RESOURCE AGENCIES
STATUTORY AUTHORITY
The repeals are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §201.607(b), which requires the department to adopt memoranda of understanding with each agency that has responsibility for the protection of the natural environment or for the preservation of historical or archeological resources, and to adopt all revisions to these memoranda by rule.
CROSS REFERENCE TO STATUTE
Transportation Code, §201.607.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 31, 2013.
TRD-201302216
Jeff Graham
General Counsel
Texas Department of Transportation
Effective date: September 1, 2013
Proposal publication date: February 15, 2013
For further information, please call: (512) 463-8683
STATUTORY AUTHORITY
The new sections are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §201.607(b), which requires the department to adopt memoranda of understanding with each agency that has responsibility for the protection of the natural environment or for the preservation of historical or archeological resources, and to adopt all revisions to these memoranda by rule.
CROSS REFERENCE TO STATUTE
Transportation Code, §201.607.
§2.201.Purpose.
(a) Transportation Code, §201.607, requires the Texas Department of Transportation (TxDOT) to adopt a memorandum of understanding (MOU) with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historical or archeological resources, and requires TxDOT and each of the agencies to adopt the memoranda and all revisions by rule. This subchapter contains the memorandum of understanding between TxDOT and the Texas Parks and Wildlife Department (TPWD) that implements that section.
(b) This subchapter furthers the environmental policy of TxDOT to protect, preserve, and when possible, enhance the environment, and the responsibility of TPWD for protecting the state's fish and wildlife resource.
(c) This MOU supersedes the MOU that was adopted to be effective March 21, 1999; the Memoranda of Agreement for the Finalization of 1998 MOU Concerning Habitat Descriptions and Mitigation that was signed August 2, 2001; the MOU Regarding Mitigation Banking that was signed December 7, 2005; and the Memorandum of Agreement for Sharing and Maintaining Natural Diversity Database Information that was signed April 11, 2007. Nothing in this subchapter supersedes, modifies, or nullifies any other agreement entered into by TxDOT and TPWD.
(d) TxDOT and TPWD shall review and by rule shall update this MOU not later than the fifth anniversary of its effective date, as required by Transportation Code, §201.607.
(e) The effective date of this MOU is September 1, 2013. Projects for which coordination with TPWD has been initiated prior to September 1, 2013 will complete coordination under the procedures of the pre-existing MOU. Projects for which coordination with TPWD has not been initiated prior to September 1, 2013 will be governed by this MOU.
§2.202.Applicability.
(a) Except as provided in subsection (b) of this section, this subchapter applies to:
(1) a state transportation project or Federal Highway Administration (FHWA) transportation project conducted by the Texas Department of Transportation (TxDOT);
(2) a state transportation project or FHWA transportation project of a private or public entity that is funded in whole or in part by TxDOT;
(3) a state transportation project or FHWA transportation project of a private or public entity that requires Texas Transportation Commission or TxDOT approval;
(4) a maintenance program for which a programmatic environmental review is conducted under §2.133 of this chapter (relating to Maintenance Projects and Programs); or
(5) any other type of project coordinated at TxDOT's request.
(b) This subchapter does not apply to individual maintenance projects for which a programmatic environmental review is conducted under §2.133 of this chapter.
(c) For transportation projects for which TxDOT allows a local government to be the project sponsor under §2.47 of this chapter (relating to Approval of Local Government as Project Sponsor), the local government project sponsor may use the procedures specified in this MOU to coordinate directly with TPWD, subject to TPWD approval on a case-by-case basis.
§2.206.Coordination Triggers.
The triggers described in this section shall be used to determine whether coordination is required as provided by §2.205 of this subchapter (relating to Determining Need for TPWD Coordination).
(1) The project is within the range of a state threatened or endangered species or SGCN as identified by the TPWD County list of Rare and Protected Species as it exists on the day the agreed-upon project scope is finalized under §2.44 of this chapter (relating to Project Scope) or if there is no project scope and for reevaluations, as it exists when TxDOT makes its determination regarding whether coordination is required, and there is suitable habitat, unless BMPs as defined in this MOU are implemented as provided by a programmatic agreement developed under §2.213 of this subchapter (relating to Programmatic Agreements).
(2) The project may adversely impact important remnant vegetation based on the judgment of a qualified biologist or as mapped in the TXNDD.
(3) The project requires a nationwide permit with pre-construction notification or an individual permit, issued by the United States Army Corps of Engineers.
(4) The project includes in the TxDOT right of way or conservation, construction, or drainage easement more than 200 linear feet of stream channel for each single and complete crossing of one or more of the following that is not already channelized or otherwise maintained:
(A) channel realignment; or
(B) stream bed or stream bank excavation, scraping, clearing, or other permanent disturbance.
(5) The project contains known isolated wetlands outside existing TxDOT right of way that will be directly impacted by the project.
(6) The project may impact at least 0.10 acre of riparian vegetation based on the judgment of a qualified biologist or as mapped in the EMST.
(7) The project disturbs habitat in an area equal to or greater than the area of disturbance indicated in the Threshold Table Programmatic Agreement developed under §2.213 of this subchapter.
§2.208.Administrated Project Coordination.
(a) Administrated project coordination will be conducted for projects subject to coordination under this MOU, but for which early project coordination is not completed.
(b) Administrated project coordination will occur between TxDOT's Environmental Affairs Division and the TPWD Wildlife Habitat Assessment Program, unless those two units agree in writing to allow other appropriate organizational units of the respective agencies or other entities approved by the respective agencies to conduct the coordination. TxDOT's Environmental Affairs Division and the TPWD Wildlife Habitat Assessment Program are each responsible for identifying its respective agency's rules and requirements.
(c) To initiate administrated project coordination, TxDOT will submit the coordination package to TPWD for review and comment. The coordination package consists of a cover letter that requests review pursuant to this MOU, the Tier II site assessment, and any other environmental studies or reports that TxDOT believes are relevant to TPWD's review of the project. This coordination package is prepared and submitted to TPWD prior to the environmental document being produced.
(d) Texas ECOS is a web-based relational database for electronic communication and tracking of environmental coordination. TPWD will be provided access with user privileges to Texas ECOS with the intention of making information exchange paperless and real time. Until TPWD has provided written agreement that Texas ECOS is adequate for TPWD coordination review, all administrated coordination will be conducted in writing and transmitted on agency letterhead.
(e) TPWD will comment on any aspect of the project it determines may have adverse impacts to fish and wildlife resources.
(f) For written communications, TPWD will notify TxDOT by email to indicate when it has received the coordination package for its review. TPWD shall have 45 days from the date TPWD receives the coordination package for its review, or from five business days after the date of transmittal of the coordination package, whichever occurs first, to provide its comments on the project. Once Texas ECOS is accepted as the means for communicating and tracking project coordination, the 45-day clock will start on the first business day after notification to TPWD that the coordination information is available in ECOS.
(g) TPWD may request additional information during the 45-day review period, in which case TxDOT will provide the requested information if the information is available or can be reasonably obtained. If the requested information cannot be provided, then TxDOT will inform TPWD and explain why in writing.
(h) TxDOT will consider and implement when mutually agreeable, the comments that are submitted by TPWD within the 45-day review period. TxDOT will provide TPWD with a written explanation of TxDOT's decisions or other action within 90 days of making a decision related to the comment.
(i) If TPWD submits comments after the end of the 45-day review period, TxDOT will consider the comments in making decisions on the project to the extent practicable, and provide a written response in the same manner indicated in subsection (e) of this section.
(j) The TxDOT department delegate for the project will ensure that the results of any coordination with TPWD, including efforts made by TxDOT during project planning and design to avoid and minimize impacts to natural resources, shall be summarized in the project's environmental review document.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 31, 2013.
TRD-201302217
Jeff Graham
General Counsel
Texas Department of Transportation
Effective date: September 1, 2013
Proposal publication date: February 15, 2013
For further information, please call: (512) 463-8683
SUBCHAPTER H. TRANSPORTATION DEVELOPMENT CREDIT PROGRAM
The Texas Department of Transportation (department) adopts amendments to §5.107 and §5.109, concerning the transportation development credit program. The amendments to §5.107 and §5.109 are adopted without changes to the proposed text as published in the March 15, 2013, issue of the Texas Register (38 TexReg 1865) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
The Texas Transportation Commission (commission) adopted Title 43, Texas Administrative Code, Chapter 5, Subchapter H, in September 2012 to establish a more efficient process for allocating, awarding, and administering transportation development credits. Since that time, the department has determined that minor amendments are required to clarify the rules and provide more flexibility with regard to the award of credits under certain circumstances.
Amendments to §5.107, Award by Commission, clarify the process by which the commission will allocate transportation development credits to support public transit projects. For each fiscal year the minimum number of credits available shall be equal to the lesser of 15 million credits or fifty percent of the total number of credits available for award by the commission on the 1st day of that fiscal year. This revision will eliminate the potential for confusion regarding the allocation process by specifying the minimum balance that will be available each year.
Amendments to §5.109, Discretionary Award, authorize the commission to allocate a lump sum of transportation development credits to the department for use on a program or category of projects which support a department goal or initiative. The individual projects, and the exact amount of credits to be used for each project, need not be specified at the time of allocation. The department will award the credits on behalf of the commission using the same criteria that the commission would consider in making an award. This revision will enable the department to utilize credits in a manner that maximizes federal funds on eligible projects.
COMMENTS
Although no comments on the proposed amendments were received, the Public Transportation Advisory Committee (PTAC) discussed the amendments at its meeting on March 19, 2013.
The statutory duties of PTAC include advising the commission on the needs and problems of the state's public transportation providers, including recommending methods for allocating public transportation funds and providing feedback on rule changes involving public transportation matters.
At its meeting, PTAC by motion endorsed the proposed amendments and recommended that the department develop a mechanism to show the use of transportation development credits in program awards in a manner that is accountable, transparent, and easily searched.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department.
CROSS REFERENCE TO STATUTE
23 U.S.C. §120.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 31, 2013.
TRD-201302218
Jeff Graham
General Counsel
Texas Department of Transportation
Effective date: June 20, 2013
Proposal publication date: March 15, 2013
For further information, please call: (512) 463-8683
SUBCHAPTER C. CONTRACTING FOR ARCHITECTURAL, ENGINEERING, AND SURVEYING SERVICES
The Texas Department of Transportation (department) adopts new §9.40, concerning procurement of architectural, engineering, or surveying services under a pilot program. New §9.40 is adopted without changes to the proposed text as published in the March 15, 2013, issue of the Texas Register (38 TexReg 1867) and will not be republished.
EXPLANATION OF ADOPTED NEW SECTION
Architectural, engineering, and surveying services are procured by the department in accordance with Government Code, Chapter 2254, Subchapter A (Professional Services Procurement Act) and implemented through Chapter 9, Subchapter C, Contracting for Architectural, Engineering, and Surveying Services. New §9.40 allows the executive director or the executive director's designee to authorize the execution of an engineering, architecture, or surveying contract that does not comply with Subchapter C, as long as the authorization is in writing and the procurement resulting in the contract provides a fair opportunity for qualification-based competition, was conducted as part of a Texas Transportation Commission (commission) approved pilot project, and the contract does not violate any statute or include federal funding.
COMMENTS
No comments on the proposed new section were received.
STATUTORY AUTHORITY
The new section is adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department.
CROSS REFERENCE TO STATUTE
None.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 31, 2013.
TRD-201302219
Jeff Graham
General Counsel
Texas Department of Transportation
Effective date: June 20, 2013
Proposal publication date: March 15, 2013
For further information, please call: (512) 463-8683