TITLE 43. TRANSPORTATION

PART 1. TEXAS DEPARTMENT OF TRANSPORTATION

CHAPTER 15. FINANCING AND CONSTRUCTION OF TRANSPORTATION PROJECTS

SUBCHAPTER O. COUNTY TRANSPORTATION INFRASTRUCTURE FUND GRANT PROGRAM

43 TAC §§15.185, 15.188, 15.191

The Texas Department of Transportation (department) proposes amendments to §15.185, Allocation to Counties, §15.188, Application Procedure, and §15.191, Agreement, all concerning procedures related to the County Transportation Infrastructure Fund Grant Program.

EXPLANATION OF PROPOSED AMENDMENTS

H.B. No. 4280, 86th Regular Session, 2019, amended Subchapter C, Chapter 256, Transportation Code, by modifying the statutory allocation formula for the County Transportation Infrastructure Fund Grant Program (program) and adding certain program requirements for county grant recipients. The department's procedures for administering the program, located in Title 43, Part 1, Chapter 15, Subchapter O of the Texas Administrative Code, must be amended to reflect the changes to the program made by H.B. 4280.

Amendments to §15.185, Allocation to Counties, provide that the department will make allocations from the transportation infrastructure fund in accordance with Transportation Code, §256.103(b). The prior rules merely restated the statutory requirements verbatim. An express reference to the applicable statute provides the necessary allocation formula without conflict if the legislature modifies that statute in the future.

Amendment to §15.188, Application Procedure, deletes the requirement that an application by a county include a map delineating project locations and termini. This is to simplify the preparation of an application by no longer requiring information that can be determined through other information included in an application.

Amendments to §15.191, Agreement, add, as a provision in the award agreement, that the county will comply with the requirements of Transportation Code, §256.107, relating to bidding requirements, and §256.108, relating to the period during which grant funds must be spent. These references alert counties to new statutory requirements enacted by the legislature.

FISCAL NOTE

Brian Ragland, 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 enforcing or administering the rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Brian Barth, Director, Project Planning and Development, 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. Barth 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 consistency in the regulatory and statutory procedures and requirements for the County Transportation Infrastructure Fund Grant Program.

COSTS ON REGULATED PERSONS

Mr. Barth 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. Barth has considered the requirements of Government Code, §2001.0221 and has determined that for the first five years in which the proposed rules are in effect:

(1) the proposed rule will not create or eliminate a government program;

(2) implementation of the proposed rule will not affect the number of the department's employee positions;

(3) implementation of the proposed rule will not increase or decrease future legislative appropriations to the department;

(4) the proposed rule will not affect fees paid to the department;

(5) the proposed rule will not create a new regulation;

(6) the proposed rule will not expand, limit, or repeal existing regulation;

(7) the proposed rule will not change the number of individuals subject to the rule's applicability; and

(8) the proposed rule will not affect the state's economy.

TAKINGS IMPACT ASSESSMENT

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

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §§15.185, 15.188 and 15.191 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 "CTIF 2019 Program." The deadline for receipt of comments is 5:00 p.m. on December 30, 2019. 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 Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §256.103, which authorizes the commission to adopt rules to administer the County Transportation Infrastructure Fund Grant Program.

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Transportation Code, Chapter 256.

§15.185.Allocation to Counties.

The department will allocate [(a) Allocation formula. Of] the total amount awarded from the fund during a state fiscal year in accordance with Transportation Code, §256.103(b). [:]

[(1) 20 percent will be allocated under subsection (b) of this section according to the weight tolerance permits ratio;]

[(2) 20 percent will be allocated under subsection (c) of this section according to the oil and gas production taxes ratio;]

[(3) 50 percent will be allocated under subsection (d) of this section according to the well completion ratio; and]

[(4) 10 percent will be allocated under subsection (e) of this section according to the volume of oil and gas waste injected ratio.]

[(b) Weight tolerance permits ratio. The amount allocated to a county under subsection (a)(1) of this section in a fiscal year is determined by:]

[(1) dividing the weight tolerance permits issued in the preceding state fiscal year for that county, as determined by the Texas Department of Motor Vehicles, by the weight tolerance permits issued in the preceding state fiscal year for all counties that will receive money under subsection (a)(1) of this section in that year; and]

[(2) multiplying the quotient determined under paragraph (1) of this subsection by the total amount allocated under subsection (a)(1) of this section.]

[(c) Oil and gas production taxes ratio. The amount allocated to a county under subsection (a)(2) of this section in a state fiscal year is determined by:]

[(1) dividing the amount of oil and gas production taxes collected by the Texas Comptroller of Public Accounts (comptroller) in that county in the preceding state fiscal year by the total amount of oil and gas production taxes collected by the comptroller in the preceding state fiscal year in all counties that will receive money under subsection (a)(2) of this section in that year; and]

[(2) multiplying the quotient determined under paragraph (1) of this subsection by the total amount allocated under subsection (a)(2) of this section.]

[(d) Well completion ratio. The amount allocated to a county under subsection (a)(3) of this section in a state fiscal year is determined by:]

[(1) dividing the number of well completions in that county in the preceding state fiscal year, as determined by the Railroad Commission of Texas, by the total number of well completions in the preceding state fiscal year in all counties that will receive money under subsection (a)(3) of this section in that year; and]

[(2) multiplying the quotient determined under paragraph (1) of this subsection by the total amount allocated under subsection (a)(3) of this section.]

[(e) Oil and gas waste injected ratio. The amount allocated to a county under subsection (a)(4) of this section in a state fiscal year is determined by:]

[(1) dividing the volume of oil and gas waste injected in the preceding state fiscal year in that county, as determined by the Railroad Commission of Texas, by the total volume of oil and gas waste injected in the preceding state fiscal year in all counties that will receive money under subsection (a)(4) of this section in that year; and]

[(2) multiplying the quotient determined under paragraph (1) of this subsection by the total amount allocated under subsection (a)(4) of this section.]

§15.188.Application Procedure.

(a) Application form. An eligible county may submit to the department an application for a grant from the fund.

(1) The application must be submitted electronically using the department's automated system designated for the grant program.

(2) A county is responsible for obtaining its use of a computer system and access to the Internet.

(3) Upon request, a county may use the department's computer system at any district office location.

(4) For an application to be valid, the county must submit the application during a period designated under §15.187 of this subchapter (relating to Acceptance of Applications) and satisfy the requirements of this section.

(b) Plan requirements. An application must contain a plan that:

(1) provides a prioritized list of transportation infrastructure projects to be funded by the grant;

(2) describes the scope of each listed transportation infrastructure project including:

(A) a clear and concise description of the proposed work;

(B) [a map delineating project location and termini;]

[(C) an implementation plan, including a schedule of proposed activities;]

(C) [(D)] an estimate of project costs;

(D) [(E)] the project funding sources; and

(E) [(F)] other information required by the department;

(3) specifies the total amount of grant funds being requested in the application;

(4) identifies matching funds required under §15.183 of this subchapter (relating to Matching Funds); and

(5) identifies other potential sources of funding to maximize resources available for the listed transportation infrastructure projects.

(c) Additional submissions. In addition to the application form, the county must also submit a road condition report described by Transportation Code, §251.018 made by the county for the preceding year.

(d) Information for previous grant. If the county has received a grant under this subchapter, it must also submit:

(1) a certification that all previous grants have been or are being spent in accordance with the applicable plan submitted under subsection (b) of this section; and

(2) an accounting of expenditures under the previous grant, including any amounts spent on administrative costs.

§15.191.Agreement.

(a) Requirement; content. Before receiving a grant from the fund, a county must enter into an agreement with the department under this section. The agreement must include, in addition to other provisions, a commitment by the county to:

(1) place the transportation infrastructure project on the county road system, if it is a county road not already on the system;

(2) expend grant money received only on allowable costs as provided in §15.192 of this subchapter (relating to Payment of Money);

(3) comply with all applicable federal, state, and local environmental laws and regulations and permitting requirements;

(4) maintain the road after completion of the proposed work, if it is a county road; [and]

(5) contribute to the department for each transportation infrastructure project located on the state highway system, from the amount awarded to the county from the fund and the county's matching funds, if applicable, an amount equal to the allowable costs, as defined by §15.192 of this subchapter, incurred by the department for that project; and.

(6) satisfy the requirements applicable to the county under Transportation Code, §256.107 and §256.108.

(b) Amendment to agreement. Any amendment to the agreement described in subsection (a) of this section must be in writing and executed jointly by the executive director and the county. A county may add a transportation infrastructure project to the prioritized list described in its application submitted under §15.188 of this subchapter (relating to Application Procedure), or a project on the list may be moved forward or backward in priority if the county submits to the department the requested revision and, for any added project, contains the information required by §15.188(b)(1) and (2) of this subchapter.

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 November 14, 2019.

TRD-201904235

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: December 29, 2019

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


CHAPTER 21. RIGHT OF WAY

SUBCHAPTER B. UTILITY ADJUSTMENT, RELOCATION, OR REMOVAL

43 TAC §21.25

The Texas Department of Transportation (department) proposes new §21.25 concerning state participation in the relocation of certain publicly-owned utility facilities.

EXPLANATION OF PROPOSED NEW SECTION

S.B. No. 1512, 86th Legislature, Regular Session, 2019, added subsections (a-4) and (e) to Transportation Code, Section 203.092. Subsection (a-4) provides that a utility will make a relocation of a utility facility required by an improvement to the state highway system at the expense of the state if the Texas Transportation Commission (commission) determines that: (1) the utility is a political subdivision or is owned or operated by a political subdivision; (2) a financial condition would prevent the utility from being able to pay the cost in full or in part or, if paid at that time, the payment would adversely affect the utility's ability to operate or provide essential services to its customers; and (3) the utility would not be able to receive a state infrastructure bank loan to finance the cost of the relocation and is otherwise unable to finance that cost or is a political subdivision, or is owned or operated by a political subdivision, that has a population of less than 5,000 and that is located in a county that has been included in at least five presidential disaster declarations in the six-year period preceding the proposed date of the relocation. Subsection (e) limits the total amount paid by the department for those relocations to not more than $10 million in any fiscal year.

New §21.25, State Participation in the Relocation of Certain Publicly-Owned Utility Facilities, prescribes the procedures to be taken by the utility to apply for state participation in the relocation of utility facilities and by the department and commission in determining whether all or part of the expense of the relocation of the facility will be paid for by the state.

FISCAL NOTE

Brian Ragland, 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 fiscal implications for state and local governments as a result of enforcing or administering the statutory changes made by S.B. 1512, rather than as a result of an administrative decision by the commission. The cost to the state is limited by statute to $10 million a year. The affected local governments will receive benefits equal to the cost to the state.

LOCAL EMPLOYMENT IMPACT STATEMENT

Kyle Madsen, Right of Way Division Director, 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

Kyle Madsen, Right of Way Division Director, 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 providing financial relief to the local political subdivisions that might not otherwise be able to fund the relocation of their facilities. Furthermore, implementation of this program will reduce delays to the transportation projects that are often caused by utility relocations.

COSTS ON REGULATED PERSONS

Kyle Madsen, Right of Way Division Director, 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 other than the department, 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

Kyle Madsen, Right of Way Division Director, has considered the requirements of Government Code, §2001.0221 and anticipates that during the first five years that the rule would be in effect:

(1) it would implement a government program that is required by statute;

(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; however, its implementation would require reprioritization of legislative appropriations within the agency;

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

(5) it would create new regulations;

(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 positively affect this state's economy by helping move utilities that would otherwise cause delays to transportation projects.

TAKINGS IMPACT ASSESSMENT

Kyle Madsen, Right of Way Division Director, has determined that a written takings impact assessment is not required under Government Code, §2007.043.

SUBMITTAL OF COMMENTS

Written comments on new §21.25 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 "New §21.25 State Participation." The deadline for receipt of comments is 5:00 p.m. on December 30, 2019. 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 section 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, Section 203.095, which requires the commission to adopt rules to implement statutes relating to the relocation of utility facilities.

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Transportation Code, Section 203.092(a-4) and (e).

§21.25.State Participation in the Relocation of Certain Publicly-Owned Utility Facilities.

(a) A utility that is a political subdivision or owned or operated by a political subdivision may request the relocation of its utility facilities required by a state highway improvement project be at the expense of the state under Transportation Code, Section 203.092(a-4).

(b) To request relocation under this section, the utility must make a written request to the department and submit:

(1) documentation that the utility, because of an existing financial condition, would be unable to pay the cost of relocation in full or in part at the time of relocation or that the utility's ability to operate or provide essential services to its customers would be adversely affected by such a payment made at that time; and

(2) documentation:

(A) on the utility's ability to obtain a state infrastructure bank loan under Chapter 6 of this title (relating to State Infrastructure Bank) and its ability to obtain other financing for the relocation, including relevant financial information described in §6.23 of this title (relating to Application Procedure); or

(B) that the utility is a political subdivision, or owned or operated by a political subdivision, that has a population of less than 5,000 and is located within a county that has been included in at least five disaster declarations made by the president of the United States of America in the six-year period preceding the proposed date of the relocation; and

(3) any other information or documentation requested by the department.

(c) As soon as practicable after review and analysis of the documentation and information provided under subsection (b) of this section, the department will submit findings and recommendations to the commission for consideration.

(d) The commission will find that all or a part of the utility facility relocation is an expense of the state if:

(1) payment for all or a part of the relocation of the utility facility would not cause the department to exceed $10 million for the relocation of utilities authorized under Section 203.092(a-4) in any fiscal year; and

(2) the commission determines that:

(A) the utility is a political subdivision or is owned or operated by a political subdivision;

(B) a financial condition exists, as described in subsection (b)(1) of this section; and

(C) the utility:

(i) would not be able to receive a state infrastructure bank loan under Chapter 6 of this title to finance the cost of the relocation and is otherwise unable to finance that cost; or

(ii) meets the description provided in subsection (b)(2)(B) of this section.

(e) If the commission finds that all or a part of the utility facility relocation is an expense of the state, the department and the utility shall include the terms of the department's payment of relocation expenses in an agreement concerning the relocation.

(f) Because of the fiscal constraint provided under Transportation Code, Section 203.092(e), the department:

(1) may prioritize the utility requests based on the needs of the department, including the construction schedules of the projects requiring relocation of utility facilities;

(2) may delay until the next fiscal year the payment of all or part of a claim made by a utility if at the time the claim is received by the department, the payment is prohibited by Section 203.092(e); and

(3) will not pay a claim for payment that is received by the department later than one year after the date that the relocation of the utility facility is completed.

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 November 14, 2019.

TRD-201904236

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: December 29, 2019

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