1. (a) Eligibility requirements. The executive director, in cooperation with an authority with which the department contracts under subsection (d) of this section, will establish eligibility requirements for vehicles authorized to use HOV or HOT lanes on the state highway system, including eligible vehicle classes and occupancy requirements. These requirements may be established based on the type and location of the transportation facility and on the time of day. In establishing these requirements, the executive director will consider:

   1. (1) the level of service on the HOV or HOT lanes;
   2. (2) the level of service on general purpose lanes that are part of the highway facility on which HOV or HOT lanes are located or are proposed to be located;
   3. (3) the consistency of the requirements with eligibility requirements established for any connecting facilities;
   4. (4) the availability of alternative routes and the level of service on those routes;
   5. (5) the effect of the requirements on transit operating efficiency; and
   6. (6) the effect of the requirements on roadway safety and air quality.

2. (b) Toll charges.

   1. (1) The commission by minute order will establish charges for the use of HOT lanes. Variable toll charges may be established based on severity of congestion, time of day, classification of vehicle, type and location of facility, and vehicle occupancy. In establishing toll charges, the commission will consider the results of traffic and revenue studies and operational plans, prepared by an authority with which the department contracts under subsection (d) of this section, and the criteria prescribed in subsection (a) of this section.

   2. (2) A governmental entity that contributes substantial funding for a HOT lane project may recommend a toll charge. The commission will approve the recommended toll charge if the commission determines that the charge:

      1. (A) is consistent with the criteria described in paragraph (1) of this subsection; and
      2. (B) complies with the requirements of any trust agreement, indenture, or other instrument securing debt financing for the project.

3. (c) Administrative fee. The commission by minute order will establish an administrative fee charged to owners of vehicles that use HOT lanes without paying the proper toll. In establishing an administrative fee, the commission will consider:

   1. (1) the estimated cost to the department to collect unpaid tolls on HOT lanes on the state highway system; and
   2. (2) the existing or estimated violation rate on HOT lanes on the state highway system.

4. (d) Operating agreements. The department may enter into an agreement with an authority to operate one or more HOV or HOT lanes. The agreement will contain terms necessary for the safe and efficient operation of the HOV or HOT lane, including, but not limited to:

   1. (1) an operations plan that includes occupancy requirements, hours of operation, and provisions for law enforcement and incident management;
   2. (2) responsibilities for maintenance of the facilities;
   3. (3) insurance and audit requirements;
   4. (4) indemnification of the department; and
   5. (5) distribution of revenue between the department and the authority.

Source Note:The provisions of this §25.43 adopted to be effective September 19, 2002, 27 TexReg 8778.