TITLE 43. TRANSPORTATION

PART 1. TEXAS DEPARTMENT OF TRANSPORTATION

CHAPTER 1. MANAGEMENT

SUBCHAPTER E. PROCEDURES IN CONTESTED CASE

43 TAC §§1.24, 1.25, 1.36

The Texas Department of Transportation (department) proposes amendments to §§1.24, 1.25, and 1.36 concerning the filing and service of documents in contested cases.

EXPLANATION OF PROPOSED AMENDMENTS

This rulemaking concerns the filing of documents with the department in contested cases. Currently, those documents may be filed using the United States mail, an overnight delivery service, hand delivery, or facsimile transmission. This rulemaking replaces facsimile transmission with electronic mail, which is more widely available and generally easier to use.

Amendments to §1.24, Filing of Petition; Procedure for Filing Petition and Other Documents, remove the option of filing documents related to contested cases using facsimile transmission and delete the procedures used for filing by facsimile transmission. Additionally, Subsection (a) is amended to provide that only one copy of a document is required if the document is sent by electronic mail. Amendments to subsection (e) provide the email address and subject line requirements for electronically filing documents in a contested case. Under new subsection (f), when a document is received by the department electronically, it is considered to be filed at the time the header of the email used to transmit the document indicates the email was sent.

Amendments to §1.25, Procedure for Service of Documents, removes the option to serve a document in a contested case using facsimile transmission because the department will no longer accept that type of transmission.

Amendments to §1.36, Proposal for Decision; Filing of Exceptions and Replies, substitute "electronic mail" for "facsimile" delivery to be consistent with other changes made by this rulemaking.

FISCAL NOTE

Brian Ragland, Chief Financial Officer, has determined 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.

Jeff Graham, General Counsel, 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.

PUBLIC BENEFIT AND COST

Mr. Graham has also determined 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 efficiency and ease of use of the system by persons filing documents in a contested case. There are no anticipated economic costs for persons required to comply with the proposed rules.

There will be no adverse economic effect on small 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. Graham 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, there is no impact on the growth of state government.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §§1.24, 1.25, and 1.36 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 "Procedures for Filing Contested Case Documents." The deadline for receipt of comments is 5:00 p.m. on August 13, 2018. 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, §201.112, which provides the commission with the authority to establish rules governing procedures in certain contract claims, and Government Code, §2001.004, which requires each agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

CROSS REFERENCE TO STATUTE

Transportation Code, §201.112 and Government Code, §2001.004.

§1.24.Filing of Petition; Procedure for Filing Petition and Other Documents.

(a) A person begins a contested case by filing an original and one copy of a petition with the executive director. If the petition is sent by electronic mail, the additional copy of the petition is not required.

(b) Filing a document, including a petition, with the executive director must be made by:

(1) sending the document by United States mail or by overnight delivery service to: Executive Director, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701;

(2) hand delivering the document to: Executive Director, Texas Department of Transportation, 125 East 11th Street, Austin, Texas; or

(3) sending the document by electronic mail in accordance with subsection (e) of this section [except as provided by subsection (e) of this section, faxing the document to: Executive Director, Texas Department of Transportation at (512) 305-9567].

(c) The time and date of the filing of a [the] document, other than an electronically filed document, is determined by the file stamp affixed by the office of the executive director[, except as provided by subsection (e) of this section for a document filed by facsimile transmission].

(d) For a document other than a petition, only an original is required to be filed.

(e) A document sent by electronic mail must be sent to CONTESTEDCASE@txdot.gov with the subject line entry of "Filing of Contested Case Matter."

(f) An electronically filed document received by the department is considered to be filed at the time indicated in the header of the electronic mail containing the document. [This subsection applies only to filings made by facsimile transmission.]

[(1) A document may not be filed by facsimile transmission if the document consists of more than 35 pages.]

[(2) The quality of the document filed by facsimile transmission must be sufficiently clear to transmit legibly.]

[(3) To be an effective filing, the first sheet of facsimile transmission must indicate the number of pages being transmitted and contain a telephone number to call if there are transmission problems.]

[(4) If a document is filed by facsimile transmission, the sender shall maintain the original of the document with the original signature. The sender is not required to file an additional copy of the document by another means.]

[(5) The time and date imprinted by the facsimile machine in the office of the executive director on the accompanying transaction report is the filing time and date, except if a document is received when the office of the executive director is closed, the filing time and date is the beginning of the next business day.]

§1.25.Procedure for Service of Documents.

(a) On the date that a party files a document, other than a petition, with the executive director, the party shall also serve a copy of the document on the judge and each party or the party's authorized representative. If the judge has designated a department employee as a party in the case, the Office of the Attorney General is the employee's authorized representative and service must be made on the Office of the Attorney General rather than the employee.

(b) Service of the document on the judge must be in accordance with SOAH rules. To any person other than the judge, service of the document must be made by:

(1) hand-delivery;

(2) regular, certified, or registered mail;

(3) overnight delivery service; or

(4) [facsimile transmission; or]

[(5) ] electronic mail, if the parties have agreed to that manner of service.

(c) A person who files a document must include with the document a certificate of service that certifies compliance with this section.

(d) If a certificate of service is not included with the document, the executive director may:

(1) return the document;

(2) send notice of noncompliance to all parties, stating the document will not be considered until all parties have been served; or

(3) send a copy of the document to the judge and all parties.

§1.36.Proposal for Decision; Filing of Exceptions and Replies.

(a) Proposal for decision. For contested cases in which the judge does not have authority to issue a final decision, the judge shall prepare a proposal for decision.

(b) Submission of the proposal for decision. The judge shall submit the proposal for decision to the executive director and furnish a copy to each party.

(c) Exceptions and replies. A party may submit to the judge an exception to the proposal for decision or a reply to an exception. The party must file a copy of the exception to the proposal for decision or the reply with the executive director, regardless of whether the final order in the case is to be issued by the executive director or the commission.

(1) To be effective:

(A) an exception must be submitted to the judge and filed with the executive director within 15 days after the date that the party receives service of the proposal for decision; and

(B) a reply to an exception must be submitted to the judge and filed with the executive director within 15 days of the date on which the exception is filed.

(2) If the proposal for decision is served by hand delivery or by electronic mail [facsimile], the date of service of the proposal is presumed to be the date of delivery. If the proposal for decision is served by regular mail, interagency mail, certified mail, or registered mail, the date of service of the proposal is presumed to be the third calendar day after the date of the mailing.

(3) The judge may extend or shorten the time to file exceptions or replies.

(4) The parties shall submit to SOAH and file with the executive director any motion for an extension of time to file an exception or reply not later than the fifth day before the applicable deadline for submission of the exception or reply. The motion must show either:

(A) good cause for the requested extension; or

(B) agreement of all other parties to the extension.

(d) Judge's review of exceptions and replies. The judge shall review all exceptions and replies and notify the executive director and parties whether the judge recommends any changes to the proposal for decision.

(e) Judge's authority. The judge may:

(1) amend the proposal for decision in response to exceptions and replies to exceptions; and

(2) correct any clerical errors in the proposal for decision.

(f) Response to amended proposal. A party is not entitled to file an exception or brief in response to an amended proposal for decision.

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 June 28, 2018.

TRD-201802853

Leonard Reese

Associate General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 12, 2018

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


CHAPTER 15. FINANCING AND CONSTRUCTION OF TRANSPORTATION PROJECTS

SUBCHAPTER P. SHIP CHANNEL IMPROVEMENT REVOLVING LOAN PROGRAM

43 TAC §§15.250 - 15.261

The Texas Department of Transportation (department) proposes new §§15.250 - 15.261, concerning the Ship Channel Improvement Revolving Loan Program.

EXPLANATION OF PROPOSED NEW SECTIONS

Section 4 of Senate Bill 28, 85th Legislature, Regular Session, 2017 (SB 28), amended the Transportation Code by adding Chapter 56, Funding of Ship Channel Improvements, which creates the ship channel improvement revolving fund as an account in the general revenue fund to be administered by the Texas Transportation Commission (commission). Transportation Code, §56.003 requires the commission by rule to establish a revolving loan program to use money from the fund to finance qualified projects for navigation districts. New §§15.250 - 15.261 (Chapter 15, Subchapter P) establish that program.

New §15.250, Purpose; Delegation Authority, describes the purpose of the ship channel improvement revolving fund as defined by law in SB 28. The section also gives the executive director the authority to delegate to a department employee any power or duty assigned to the executive director by Chapter 15, Subchapter P.

New §15.251, Definitions, provides definitions of terms used throughout this subchapter to distinguish between the commission, the department, and the executive director of the department.

New §15.252, Eligible Applicant, identifies an eligible applicant as a navigation district, as defined by Transportation Code, §56.001, or an entity that is authorized to finance a project for a navigation district.

New §15.253, Qualified Project, identifies the types of projects for which the proceeds of a loan from the program may be used. As required by Transportation Code, §56.003, the project must deepen or widen a ship channel and be authorized by the United States Congress; however, that section also provides that a project for maintenance dredging is not a qualified project for the program.

New §15.254, Application Procedures, provides that an application for a loan from the program must be submitted to the executive director in a form prescribed by the department.

New §15.255, Department Action, provides that the department will advise the applicant of any required information or data that is missing and may require additional information or explanations from the applicant. When the application is complete, the executive director will submit findings and recommendations to the commission for consideration.

New §15.256, Commission Action, sets forth the requirements for the commission's minute order approving or disapproving an application, and requiring that the commission include the rationale, findings, and conclusions on which approval or disapproval is based.

New §15.257, Compliance Requirements, requires that an entity that receives a loan comply with applicable state and federal law and maintain its books and records related to the project in accordance with generally accepted accounting principles.

New §15.258, Audits and Reports, requires annual audits and provides for the submission of an annual report detailing project expenditures, providing an accounting of loan proceeds, and providing any other information requested by the department.

New §15.259, Document Retention and Access, requires an entity receiving a loan to retain all work papers and supporting documents for the project for a specified time. All original documents shall be retained and be made available for state or federal audits until the later of the date that the project is completed, all loans have been repaid, or the retention period required by applicable state or federal law ends.

New §15.260, Financial and Credit Requirements, requires an entity receiving a loan to repay the loan in accordance with terms specified by the commission; to submit annual and supplemental operating and capital budgets within 30 days of their adoption; and to submit to the department, for any debt payable from the same revenue that is to repay a loan, notices of material events within 30 days after their submission to Electronic Municipal Market Access System (EMMA) of the Municipal Securities Rulemaking Board, or advise the department in writing that the submission to EMMA has been made.

New §15.261, Delivery of Documents After Project Completion, requires an entity that receives a loan to submit to the department upon project completion all project files and reports as requested by the department.

FISCAL NOTE

Brian Ragland, Chief Financial Officer, has determined 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.

Benjamin H. Asher, Director, Project Finance, Debt, and Strategic Contracts Division, has determined that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed rules.

PUBLIC BENEFIT AND COST

Mr. Asher has also determined 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 the department's authority to use money from the ship channel improvement revolving fund to finance qualified projects for navigation districts. There are no anticipated economic costs for persons required to comply with the proposed rules.

There will be no adverse economic effect on small 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. Asher 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, there is no impact on the growth of state government.

SUBMITTAL OF COMMENTS

Written comments on the proposed new §§15.250 - 15.261 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 "Ship Channel Improvement Revolving Loan Program." The deadline for receipt of comments is 5:00 p.m. on August 13, 2018. 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 sections 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, §56.003, which requires the commission to adopt rules to implement Transportation Code, Chapter 56, relating to the establishment of the ship channel improvement revolving loan program.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapter 56.

§15.250.Purpose; Delegation Authority.

(a) Transportation Code, Chapter 56, establishes the ship channel improvement revolving fund as an account in the general revenue fund, to be administered by the commission. The Ship Channel Improvement Revolving Loan Program is established to use money from the fund to provide loans for qualified projects as authorized under Transportation Code, Chapter 56.

(b) The executive director may delegate to a department employee any power or duty assigned to the executive director by this subchapter.

§15.251.Definitions.

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

(1) Commission--The Texas Transportation Commission.

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

(3) Executive director--The executive director of the department.

§15.252.Eligible Applicant.

(a) The department will accept an application under this subchapter only from a navigation district or an entity that is authorized to finance a project for a navigation district.

(b) In this section, "navigation district" has the meaning assigned by Transportation Code, §56.001.

§15.253.Qualified Projects.

(a) To qualify for a loan under this subchapter, a project must:

(1) deepen or widen a ship channel; and

(2) be authorized by the United States Congress.

(b) Under Transportation Code, §56.003(c), a project for maintenance dredging is not a qualified project under this subchapter.

§15.254.Application Procedures.

To apply for a loan under this subchapter, an applicant must submit to the executive director an application in a form prescribed by the department and any other information that may be required by the department.

§15.255.Department Action.

(a) The department will review an application submitted under this subchapter to ensure that sufficient information has been provided to support the eligibility of the applicant and the project, and advise the applicant of any required information or data that is missing.

(b) When the application is complete, the executive director will submit findings and recommendations to the commission for consideration as soon as practicable.

§15.256.Commission Action.

(a) The commission will consider the executive director's findings and recommendations.

(b) The commission may approve an application only if the application is from an eligible applicant for a qualified project as defined in this subchapter.

(c) The commission will approve or disapprove an application under this subchapter by minute order that includes the rationale, findings, and conclusions on which approval or disapproval is based.

(d) Nothing in this subchapter is intended to require the approval of a request made under this subchapter.

§15.257.Compliance Requirements.

(a) An entity that receives a loan under this subchapter shall comply with applicable state and federal law in the performance of work on a project for which proceeds from a loan under this subchapter are used.

(b) The entity shall maintain its books and records related to the project in accordance with generally accepted accounting principles and with all other applicable federal and state requirements.

§15.258.Audits and Reports.

(a) An entity that receives a loan under this subchapter shall have an audit prepared annually by a certified public accountant in accordance with generally accepted auditing standards and with all other applicable federal and state requirements. The entity shall cause the auditor to provide a full copy of the audit report and any other management letters or auditor's comments directly to the department within 30 days after the report and information have been provided to the governing body of the entity.

(b) An entity that receives a loan under this subchapter, on request of the department and at the entity's cost, shall provide to the department:

(1) in a format acceptable to the department, an annual report listing project expenditures, providing an accounting of proceeds of a loan under this subchapter, and providing any other information requested by the department; and

(2) a copy of any report the entity is required to provide to a local, state, or federal agency.

§15.259.Document Retention and Access.

Unless the department in writing provides a shorter period, the entity shall retain and hold open for state or federal audits all original project files, records, accounts, and supporting documents until the later of the date that:

(1) the project is completed;

(2) all loans under this subchapter have been repaid; or

(3) the retention period required by applicable federal and state law ends.

§15.260.Financial and Credit Requirements.

(a) An entity that receives a loan under this subchapter shall repay the loan according to terms specified by the commission.

(b) An entity that receives a loan under this subchapter shall submit to the department the annual operating and capital budgets adopted by the governing body of the entity for each fiscal year that a loan under this subchapter is outstanding and any amended or supplemental operating or capital budget approved by the governing body of the entity. Such a document must be certified as correct by the entity's chief administrative officer or chief financial officer. The entity shall deliver the document to the department within 30 days of the date of its adoption or approval.

(c) For any debt payable from the same revenue source as that used to repay a loan under this subchapter, the entity that receives the loan, within 30 days after the date that the entity submits to the Electronic Municipal Market Access System (EMMA) of the Municipal Securities Rulemaking Board a notice of a material event required to be disclosed under Rule 15c2-12 of the United States Securities and Exchange Commission (17 C.F.R. §240.15c2-12), shall submit to the department a written document that states that the entity has made the submission to EMMA.

§15.261.Delivery of Documents After Project Completion.

An entity that receives a loan under this subchapter, on completion of the project, shall forward to the department all project files and reports as requested 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 June 28, 2018.

TRD-201802854

Leonard Reese

Associate General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 12, 2018

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


CHAPTER 25. TRAFFIC OPERATIONS

SUBCHAPTER O. CRASH RECORDS INFORMATION SYSTEM

43 TAC §25.977

The Texas Department of Transportation (department) proposes amendments to §25.977, Reporting by Investigating Officers.

EXPLANATION OF PROPOSED AMENDMENTS

The proposed amendments to §25.977(c) implement Section 45 of Senate Bill 312, passed by the 85th Legislature, Regular Session, 2017, which amends Transportation Code §550.062(b) to require web-based filing of crash reports by investigating law enforcement officers. Beginning September 1, 2019, law enforcement officers will be required to file CR-3 Texas Peace Officer Crash Reports using a web-based format, resulting in more accurate and timely receipt of crash reports by TxDOT as the custodian of crash reports and crash data for the state of Texas. The department's Traffic Operations Division is reaching out to agencies that are not currently set up to submit the reports through a web-based format to assist them in ensuring that they will be able to meet the statutory deadline. In addition, the proposed amendments delete §25.977(d) to eliminate reference to Form CR-3 Alternate, the Texas Peace Officer's Alternate Crash Report, which was discontinued as of January 1, 2018.

FISCAL NOTE

Brian Ragland, Chief Financial Officer, has determined 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.

Michael A. Chacon, Traffic Operations 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.

PUBLIC BENEFIT AND COST

Michael A. Chacon, Traffic Operations Division Director, has also determined 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 the more accurate and timely receipt of crash reports by TxDOT as the custodian of crash reports and crash data for the state of Texas. There are no anticipated economic costs for persons required to comply with the proposed rules.

There will be no adverse economic effect on small 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

Michael A. Chacon, Traffic Operations Division Director, 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, there will be no government growth impact.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §25.977 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 "Web-based filing of crash reports." The deadline for receipt of comments is 5:00 p.m. on August 13, 2018. 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.

CROSS REFERENCE TO STATUTE

Transportation Code §550.062(b).

§25.977.Reporting by Investigating Officers.

(a) A law enforcement officer who investigates a motor vehicle crash shall submit a crash record report within 10 days of the accident on a form prescribed by the department if the crash resulted in:

(1) injury to or death of a person;

(2) $1000 or more of property damage to the property of any one person.

(b) The crash record report form must include:

(1) information about the crash;

(2) information about all vehicles involved in the crash;

(3) information about each person involved in the crash; and

(4) other factors necessary for the department to comply with state and federal reporting requirements.

(c) The department has developed Form CR-3, Texas Peace Officer's Crash Report, to satisfy the requirements of subsection (b) of this section. Investigating officers must file Form CR-3 through a web-based format beginning September 1, 2019.

[(d) The department also has developed Form CR-3 Alternate, Texas Peace Officer's Alternate Crash Report, to satisfy the requirements of subsection (b) of this section and provide an alternate format that the investigating officer or the officer's law enforcement agency may choose for reporting the required information.]

(d) [(e)] The forms are available through the department's website at www.txdot.gov.

(e) [(f)] Incomplete or inaccurate crash reports, with the exception of location information as described in §25.974(b) of this subchapter (relating to Officer Accident Report Modifications), will be returned to the originating law enforcement agency for correction.

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 June 28, 2018.

TRD-201802855

Leonard Reese

Associate General Counsel

Texas Department of Transportation

Earliest possible date of adoption: August 12, 2018

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