Texas Register, Volume 35, Number 42, Pages 9167-9436, October 15, 2010 Page: 9,218
9167-9436 p. ; 28 cm.View a full description of this periodical.
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382.011, 382.012, 382.017, 382.051, 382.0511, 382.0512, and
382.0518.
116.118. Pre-change Qualification.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal author-
ity to adopt.
Filed with the Office of the Secretary of State on October 1, 2010.
TRD-201005670
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: November 14, 2010
For further information, please call: (512) 239-6090
TITLE 43. TRANSPORTATION
PART 1. TEXAS DEPARTMENT OF
TRANSPORTATION
CHAPTER 21. RIGHT OF WAY
SUBCHAPTER J. LEASING OF HIGHWAY
ASSETS FOR TRANSPORTATION FACILITY
43 TAC 21.301 - 21.311
The Texas Department of Transportation (department) proposes
new Subchapter J, Leasing of Highway Assets for Transportation
Facility, 21.301 - 21.311.
EXPLANATION OF PROPOSED NEW SECTIONS
In Texas, freight traffic has experienced significant growth, and
forecasts indicate that it will continue to grow in the future. While
this growth represents economic opportunity for the state, it has
also resulted in increased congestion on the state's transporta-
tion infrastructure. In many areas, truck traffic of freight con-
tributes significantly to highway congestion, leading to lost time
for drivers, increased energy consumption, and increased air
emissions. Much of this traffic also translates into operational
and maintenance costs for state and local governments. Fur-
thermore, there is concern over the impact of emissions on air
quality conditions.
In response to these issues, the department is considering ways
to foster viable and sustainable solutions for freight transporta-
tion across the state by encouraging more efficient strategies.
One option is to explore how underutilized state assets, like
highway right of way, can be used to encourage implementation
of alternative freight transportation services and potentially
provide another source of revenue to address transportation
needs. The department previously sought ideas for creating
new transportation facilities through a Request for Information -
Concepts for New, Low Carbon Emitting, Freight Transportation
Facilities, which was published in the December 19, 2008, issue
of the Texas Register (33 TexReg 10385).
New 21.301, Purpose, sets forth the purpose of the subchapter,
which is to establish the procedure for leasing department right
of way for transportation facilities to reduce highway congestion
and improve air quality. The right of way may not be leased for
a pipeline, an electric transmission line, or another utility facility.
The procedure provided by this subchapter is in addition to theprocedure established under 43 TAC Chapter 21, Subchapter L
(relating to Leasing of Highway Assets).
New 21.302, Definitions, provides definitions for "commission,"
"department," and "executive director."
New 21.303, Request for Proposals, describes how the depart-
ment may solicit proposals for the lease of right of way for low
emission alternative freight transportation facilities. This section
states the information that proposers must include in the pro-
posal and provides that the department may set geographic lim-
itations on right of way to be leased. The request for proposal
will set out in detail the specific evaluation criteria that the depart-
ment establishes for the project under 21.305. It also describes
how the department will give notice of the request for proposals.
These provisions ensure that the procurement process is con-
ducted efficiently and inform entities on how to participate in the
process.
New 21.304, Proposals, describes the information a proposer
must submit to the department in response to a request for pro-
posals. The required information includes a description of the
facility, description of the technology to be used, a financial plan,
and right of way to be leased. The information must include in-
formation on air emissions. It must show the facility's effects on
the state highway system. It must show the proposer's qualifi-
cations and the proposed business terms.
New 21.305, Selection of Entity, describes how the department
will select an entity. The department will evaluate proposals
based on the criteria that the department reasonably determines
are relevant for the project, including among other factors, the
comparative value of estimated emissions reductions generated
by the proposed transportation facility, the revenue potential to
the state, the current viability of proposed technology, or the fi-
nancial viability of the proposer. In the request for proposal for a
project, the department will set out in detail the specific evalua-
tion criteria that the department has established for that project.
The department may select more than one proposer. Alterna-
tively, the department may reject all proposals. This allows the
department to determine if any proposals merit further consider-
ation but does not obligate the department to select a proposal
if none would be beneficial to the department. The department
will submit its recommendations to the commission which will
select a proposal if the commission determines that: (1) at least
one alternative for moving freight available that has lower emis-
sions than by truck for an equivalent load and distance; (2) a
suitable part of the right of way of, the airspace above, or the
underground space below a highway on the state highway sys-
tem will not be needed for a highway purpose during the term
of the lease; (3) the use of that property for the alternative facil-
ity is not inconsistent with applicable highway use; and (4) the
lease of that property would be economically beneficial to the
department, considering the receipt of lease payments and any
resulting reduced maintenance costs on the state highway sys-
tem.
New 21.306, Negotiation with Selected Entity, provides that the
department will attempt to negotiate an agreement with a se-
lected entity to lease right of way from the department. The de-
partment may end negotiations with the entity if an acceptable
agreement cannot be negotiated or if it appears that the entity's
proposal will not offer the apparent best value. If the department
ends negotiations, it may choose to reject all proposals, modify
the request for proposals and reinitiate the procurement process,
or if authorized by the commission, attempt to negotiate a lease35 TexReg 9218 October 15, 2010 Texas Register
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Texas. Secretary of State. Texas Register, Volume 35, Number 42, Pages 9167-9436, October 15, 2010, periodical, October 15, 2010; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth129013/m1/51/: accessed May 9, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.