The Texas Department of Transportation (department) adopts new §§15.140-15.145, concerning the abandonment of a rail line by a rural rail transportation district. Sections 15.140-15.145 are adopted without changes to the proposed text as published in the March 15, 2002, issue of the Texas Register (27 TexReg 1997) and will not be republished.

EXPLANATION OF ADOPTED 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 (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 comments 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.

COMMENTS

On April 2, 2002, a public hearing was held to receive comments, views, or testimony concerning the proposed adoption of §§15.140-15.145. One comment was received at the public hearing from John Helsley, representing Rail District Advisors, Incorporated, and several rail districts. Written comments were received from the Burnet County Rural Rail Transportation District and the Northeast Texas Rural Rail Transportation District.

Comment: John Helsley stated that it was evident by the lack of presence in the hearing room that a lot of rail districts were not represented nor able to attend, so he requested that these comments be mailed out to the rail districts to make sure they have a copy of the legislation.

Response: The department has sent copies of Senate Bill 406, 77th Legislature, 2001, which added Article 6550c, §5(r), the rules proposed by the commission, and the proposed preamble to each rural rail transportation district.

Comment: The Burnet County Rural Rail Transportation District stated that they had reviewed the proposed rule additions and had no objections.

Comment: The Northeast Texas Rural Rail Transportation District (NETEX) stated that after reviewing the proposed new subsections, they did not have any major issues or concerns regarding the changes and that this addition simply puts into law requirements in the existing contract between NETEX and the department.

STATUTORY AUTHORITY

The new sections 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, 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.