1. (a) Each railroad operating within the state shall pay an annual fee as provided by this section.
2. (b) Each railroad operating within the state shall report to the Commission, no later than July 1 of each calendar year, the railroad's gross ton miles for the preceding calendar year. The report shall be in writing, signed by a duly authorized officer of the railroad, and shall be verified.

3. (c) As used in this section, "gross ton miles" means:

   1. (1) the combined weight of all rail cars and their contents, exclusive of locomotives, multiplied by the number of miles traveled in the state within a calendar year; or
   2. (2) if a railroad has reported its calendar year gross ton miles on a Form R-1 filed with the United States Surface Transportation Board (USSTB), that portion of the reported gross ton miles that are for operations within the state; or
   3. (3) if a railroad is not required to file a Form R-1 with the USSTB, and if determining the railroad's actual calendar year gross ton miles is unduly burdensome, the railroad's good-faith estimate of gross ton miles as defined in paragraph (1) of this subsection.

4. (d) The Commission shall determine the annual fee for each railroad operating in the state as follows:

   1. (1) each railroad's gross ton miles will be divided by the total gross ton miles of all railroads operating in the state; and
   2. (2) the result will be multiplied by the amount estimated by the Commission to be necessary to recover the costs of administering the Commission's rail safety program for the next state fiscal year.
5. (e) The Commission shall, no later than September 1 of each calendar year, notify each railroad operating in the state of the amount of that railroad's fee that is due and payable.
6. (f) Each railroad operating in the state shall, no later than November 1 of each calendar year, pay its assessed fee to the Commission. The payment shall be made payable to the State of Texas and shall be considered by the Commission to be timely made if it is received by the Commission on or before November 1 of the same calendar year in which notice has been given pursuant to subsection (e) of this section, or is sent to the Commission by first-class United States mail in an envelope properly addressed, stamped, and postmarked on or before November 1 of the same calendar year in which notice has been given, pursuant to subsection (e) of this section, and received by the Commission not more than 10 days later. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.

7. (g) The following requirements apply to railroad reports.

   1. (1) If a railroad does not timely report its gross ton miles, the Commission may make a good-faith estimate of the railroad's gross ton miles and assess the railroad's fee based on that estimate. Failure by a railroad to timely report its gross ton miles constitutes a waiver by the railroad to object to both the Commission's estimate and the fee based on the estimate.
   2. (2) If the Commission has a rational basis for questioning the gross ton miles reported by a railroad, the Commission may, by letter, fax, or electronic mail, request the railroad to provide documentation or other evidence demonstrating how the railroad determined its reported gross ton miles. The request shall state the Commission's rational basis for questioning the reported gross ton miles and shall inform the railroad that it may deliver such documentation or evidence to the Commission by hand delivery, mail, fax, electronic mail or private carrier. If the Commission determines that a railroad has not provided sufficient documentation or other evidence within 14 calendar days of the request, the Commission may proceed under paragraph (1) of this subsection as if the railroad did not timely report its gross ton miles. The Commission shall inform a railroad whether it accepts the railroad's documentation or evidence or is proceeding under paragraph (1) of this subsection.
8. (h) Fees collected under this section shall be deposited to the credit of the general revenue fund to be used for the rail safety program.

9. (i) This subsection controls during the period beginning on the effective date of this section and ending on May 10, 2004. The definition of "gross ton miles" in subsection (c) of this section applies to this section.

   1. (1) This paragraph applies to each railroad operating within this state that is required to report its gross ton miles to the USSTB.

      1. (A) Each railroad shall report to the Commission, no later than October 15, 2003, the railroad's gross ton miles for the calendar year 2002. The report shall be in writing, signed by a duly authorized officer of the railroad, and shall be verified.

      2. (B) The Commission shall determine the annual fee of each railroad operating in the state as follows:

         1. (i) each railroad's gross ton miles for calendar year 2002 will be divided by the total gross ton miles reported by all railroads under this paragraph for calendar year 2002; and
         2. (ii) the result will be multiplied by 95% of the amount estimated by the Commission to be necessary to recover the costs of administering the Commission's rail safety program for the state fiscal year that begins on September 1, 2003.
      3. (C) The Commission shall, no later than November 1, 2003, notify each railroad of the amount of the railroad's annual fee that is due and payable.
      4. (D) Each railroad shall, no later than December 31, 2003, pay the fee to the Commission as provided in subsection (f) of this section, except that the Commission shall consider the payment to be timely made if it is received by the Commission on or before December 31, 2003, or is sent to the Commission by first-class United States mail in an envelope properly addressed, stamped, and postmarked on or before December 31, 2003, and received by the Commission not more than 10 days later. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.

   2. (2) This paragraph applies to each railroad operating within this state that is not required to report its gross ton miles to the USSTB.

      1. (A) Each railroad shall report to the Commission, no later than February 1, 2004, the railroad's gross ton miles for calendar year 2002. The report shall be in writing, signed by a duly authorized officer of the operator, and shall be verified.

      2. (B) The Commission shall determine the annual fee of each such railroad operating in the state as follows:

         1. (i) each railroad's gross ton miles for calendar year 2002 will be divided by the total gross ton miles reported by all railroads under this paragraph for the calendar year 2002; and
         2. (ii) the result will be multiplied by 5% of the amount estimated by the Commission to be necessary to recover the costs of administering the Commission's rail safety program for the state fiscal year that begins on September 1, 2003.
      3. (C) The Commission shall, no later than March 1, 2004, notify each railroad of the amount of the railroad's annual fee that is due and payable.
      4. (D) Each railroad shall, no later than April 30, 2004, pay the fee to the Commission as provided in subsection (f) of this section, except that the Commission shall consider the payment to be timely made if it is received by the Commission on or before April 30, 2004, or is sent to the Commission by first-class United States mail in an envelope properly addressed, stamped, and postmarked on or before April 30, 2004, and received by the Commission not more than 10 days later. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.

Source Note:The provisions of this §5.301 adopted to be effective September 29, 2003, 28 TexReg 8313.