The Texas Department of Transportation proposes new §§15.140-15.145, concerning the abandonment of a rail line by a rural rail transportation district.

EXPLANATION OF PROPOSED NEW SECTIONS

Texas Civil Statutes, Article 6550c, §5(r) provides that a rural rail transportation district (district) created under that article may not abandon a rail line of the district with respect to which state funds have been loaned or granted unless the abandonment is approved by the Texas Transportation Commission as being consistent with the policies of that article. The department has provided rural rail transportation districts with state funds that were used for district costs relating to the acquisition of rail lines by the districts and contracts for the operation of those rail lines by railroad companies.

New §15.140 describes the purpose of the new subchapter, which is to prescribe the policies and procedures by which a district may apply for and obtain approval to abandon a rail line of the district.

New §15.141 defines words and terms used in the new subchapter. This section defines state funds as funds provided by this state or an agency of this state for the purpose of acquiring or operating a rail line. This includes the operation of the rail line by the district itself or through an operating contract under which the contracted operator is the proper party to seek abandonment authority to extinguish its common carrier obligation to operate the line.

New §15.142 requires an application for approval to abandon a rail line to be submitted to the department. Under federal law, the abandonment of a rail line is subject to the permission of the Surface Transportation Board (STB). Federal law requires notices of intent to file an abandonment application and applications for abandonment to be filed with the STB in accordance with the requirements of STB regulations. In order to ensure compliance with federal requirements and conditions of state funding, and to protect the state's financial interests, §15.142 requires an application requesting abandonment approval that is submitted to the department to include documentation under which the district obtained state funds, copies of the notice and application filed with the STB, and documentation evidencing compliance with STB regulations relating to abandonment of rail lines.

Those regulations require a notice to be filed with the STB not more than 30 days prior to the filing of the federal abandonment application. In order to facilitate compliance with federal requirements, §15.142 requires the application required by this section to be submitted to the department no later than 45 days after the filing of a notice of intent to file an abandonment application with the STB.

New §15.143 prescribes procedures for conducting public hearings to receive public comments on the proposed abandonment. If the department finds that the application meets the requirements of §15.142, it will conduct one or more public hearings to receive public comment on the proposed abandonment. The department will hold at least one hearing within at least one of the counties of the district. The district will advertise each hearing in accordance with an outreach plan developed in consultation with the department. The commission believes that this public involvement is necessary for the commission to determine the views of persons and entities that may be affected by the loss of rail service and is sufficiently flexible to adapt to the particular circumstances of each application.

New §15.144 prescribes criteria that the commission will consider in determining whether to approve a district's request to abandon a rail line. The policies of Texas Civil Statutes, Article 6550c include providing for the maintenance of existing rail systems necessary for the movement of materials and products to markets, economic and business development, the elimination of unemployment or underemployment, and the development and expansion of transportation and commerce in this state. The criteria prescribed in this section are intended to ensure a proposed abandonment is consistent with those policies, to ensure consistency with criteria considered by the STB in determining whether to permit abandonment, to reduce any adverse impact on shippers or communities served by the rail line proposed for abandonment and on the state transportation system, and to ensure the preservation of rail lines that remain viable for continued rail service.

New §15.144 provides that, in approving a request to abandon a segment of rail line, the commission will consider service performed on the line in the two years preceding the date of the notice, comments or other evidence of support of or opposition to the proposed abandonment received from interested parties, alternate sources of transportation services available, the impact of the proposed abandonment on the operation of the state transportation system, the impact of the proposed abandonment on communities served by the rail line, and the viability of the rail line for continued rail transportation service.

New §15.145 provides that a district's abandonment of a rail line remains subject to STB permission pursuant to federal law.

FISCAL NOTE

James Bass, Director, Finance Division, has determined that for each of the first five-years the new sections are in effect, there will be no fiscal implications for state government as a result of enforcing or administering the new sections. There may be fiscal implications for local governments as a result of enforcing or administering the new sections. The department anticipates that local governments will incur additional costs in preparing and processing applications for abandonment approval. Those costs cannot be quantified with any certainty, as it will depend on the nature and number of rail lines for which approval is sought. There are no anticipated economic costs for persons required to comply with the sections as proposed.

James L. Randall, Director, Transportation Planning and Programming Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the new sections.

PUBLIC BENEFIT

Mr. Randall has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the new sections will be to ensure the preservation of rail lines that remain viable for continued rail service, thereby facilitating economic and business development and the development and expansion of transportation and commerce. There will be no adverse economic effect on small businesses directly resulting from enforcing or administering the new sections.

PUBLIC HEARING

Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed new subchapter. The public hearing will be held at 9 a.m. on April 2, 2002, in the first floor hearing room of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas and will be conducted in accordance with the procedures specified in 43 TAC §1.5. Those desiring to make comments or presentations may register starting at 8:30 a.m. Any interested persons may appear and offer comments, either orally or in writing; however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views and identical or similar comments through a representative member when possible. Comments on the proposed text should include appropriate citations to sections, subsections, paragraphs, etc. for proper reference. Any suggestions or requests for alternative language or other revisions to the proposed text should be submitted in written form. Presentations must remain pertinent to the issues being discussed. A person may not assign a portion of his or her time to another speaker. A person who disrupts a public hearing must leave the hearing room if ordered to do so by the presiding officer. Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or Braille, are requested to contact Randall Dillard, Director, Public Information Office, 125 East 11th Street, Austin, Texas 78701-2483, 512/463-8588 at least two working days prior to the hearing so that appropriate services can be provided.

SUBMITTAL OF COMMENTS

Written comments on the proposed new sections may be submitted to James L. Randall, Director, Transportation Planning and Programming Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on April 15, 2002.

STATUTORY AUTHORITY

The new sections are proposed 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 Texas Department of Transportation, and more specifically, Texas Civil Statutes, Article 6550c, §5(r), which requires the commission to adopt by rule procedures for applying for and obtaining approval to abandon a rail line.

No statutes, articles, or codes are affected by the proposed new sections.