SECTION 7.41. Rail Safety Program Fee

(a) Annual fee. Each railroad operating within the state shall pay an annual fee as provided by this section.

(b) Definitions. The following terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise.

(1) Gross ton miles:

(A) 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

(B) 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.

(2) Rail cars interchanged--rail cars that are transferred from one railroad to another.

(c) Annual report of gross ton miles. Each railroad operating within the state that is required to report its gross ton miles to the USSTB, shall report to the department, 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 verified as to accuracy.

(d) Annual report of rail cars interchanged. Each railroad operating within the state that is not required to report its gross ton miles to the USSTB, shall report to the department, no later than July 1 of each calendar year, the railroad's total number of rail cars interchanged for the preceding calendar year. The report shall be in writing, signed by a duly authorized officer of the railroad, and verified as to accuracy.

(e) Calculation of fee. The department shall determine the annual fee for each railroad operating in the state as follows:

(1) for each railroad that is required to report its gross ton miles to the department:

(A) each railroad's gross ton miles will be divided by the total gross ton miles of all railroads required to report gross ton miles to the department; and

(B) the result will be multiplied by 95% of the amount estimated by the department to be necessary to recover the costs of administering the department's rail safety program for the next state fiscal year;

(2) for each railroad that is required to report its total rail cars interchanged to the department:

(A) each railroad's total number of rail cars interchanged will be divided by the total number of rail cars interchanged by all railroads required to report rail car interchanges to the department; and

(B) the result will be multiplied by 5% of the amount estimated by the department to be necessary to recover the costs of administering the department's rail safety program for the next state fiscal year.

(f) Notice of fee due. The department 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.

(g) Payment of fee. Each railroad operating in the state shall, no later than November 1 of each calendar year, pay its assessed fee to the department. The payment shall be made payable to the state of Texas and shall be considered by the department to be timely made if it is received by the department on or before November 1 of the same calendar year in which notice has been given under subsection (f) of this section, or is sent to the department 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 under subsection (f) of this section, and received by the department 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.

(h) Determination of gross ton miles, total rail cars interchanged. The following requirements apply to railroad reports.

(1) If a railroad does not timely report its gross ton miles as required by subsection (c) of this section, the department 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 department's estimate and the fee based on the estimate.

(2) If a railroad does not timely report its total rail cars interchanged as required by subsection (d) of this section, the department may make a good-faith estimate of the railroad's total cars interchanged and assess the railroad's fee based on that estimate. Failure by a railroad to timely report its total cars interchanged constitutes a waiver by the railroad to object to both the department's estimate and the fee based on the estimate.

(3) If the department has a rational basis for questioning the gross ton miles or the total rail cars interchanged reported by a railroad, the department may, by letter, fax, or electronic mail, request the railroad provide documentation or other evidence demonstrating how the railroad determined its reported gross ton miles or its reported total rail cars interchanged. The request shall state the department's rational basis for questioning the reported gross ton miles or the reported total rail cars interchanged and shall inform the railroad that it may deliver such documentation or evidence to the department by hand delivery, mail, fax, electronic mail, or private carrier.

(4) If the department determines that a railroad has not provided sufficient documentation or other evidence within 14 calendar days of the request, the department may, in the case of a railroad required to report its gross ton miles, proceed under paragraph (1) of this subsection as if the railroad did not timely report its gross ton miles or, in the case of a railroad required to report its total rail cars interchanged, proceed under paragraph (2) of this subsection as if the railroad did not timely report its total rail cars interchanged. The department shall inform a railroad whether it accepts the railroad's documentation or evidence or whether it is proceeding under paragraph (1) or (2) of this subsection.

(i) Administrative review. A railroad may apply for administrative review of the department's determination under subsection (h)(3) and (4) of this section in accordance with §7.42 of this subchapter (relating to Administrative Review).

Source Note: The provisions of this §7.41 adopted to be effective January 5, 2006, 30 TexReg 8993; amended to be effective April 1, 2011, 36 TexReg 1690