Bill Text: NC H1734 | 2010 | Regular Session | Introduced
Bill Title: DOT Powers and Duties Changes
Spectrum: Slight Partisan Bill (Democrat 3-1)
Status: (Passed) 2010-08-02 - Ch. SL 2010-165 [H1734 Detail]
Download: North_Carolina-2010-H1734-Introduced.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
H D
HOUSE DRH60025-RWz-29* (04/27)
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Short Title: DOT Powers and Duties Changes. |
(Public) |
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Sponsors: |
Representative Cole. |
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Referred to: |
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A BILL TO BE ENTITLED
AN ACT to ELIMINATE A DEPARTMENT OF TRANSPORTATION REPORT ON THE CONDITION OF ITS BUILDINGS; CORRECT A STATUTORY REFERENCE TO THE DEPARTMENT OF TRANSPORTATION'S CHIEF FINANCIAL OFFICER; ELIMINATE STATUTORY REFERENCES TO A SEVEN-YEAR TRANSPORTATION IMPROVEMENT PROGRAM; CLARIFY THAT THE DEPARTMENT OF TRANSPORTATION HAS AUTHORITY AND GENERAL SUPERVISION OVER ALL TRANSPORTATION PROJECTS; PROVIDE THAT THE DEPARTMENT OF TRANSPORTATION HAS AUTHORITY TO ENTER INTO AGREEMENTS WITH LOCAL GOVERNMENTS TO RECEIVE FUNDS FOR RIGHT‑OF‑WAY ACQUISITION; UPDATE STATUTORY REFERENCES TO THE NORTH CAROLINA TURNPIKE AUTHORITY; ELIMINATE A DEPARTMENT OF TRANSPORTATION REPORT ON ACCESS TO COASTAL WATERS; REVISE THE STATUTES GOVERNING THE DEPARTMENT OF TRANSPORTATION'S DISADVANTAGED MINORITY‑OWNED AND WOMEN‑OWNED BUSINESSES PROGRAM; MODIFY THE EFFECT OF MUNICIPAL PARTICIPATION ON DEPARTMENT OF TRANSPORTATION PROJECTS; AND TRANSFER TO THE SECRETARY THE POWER TO PROMULGATE DEPARTMENT OF TRANSPORTATION RULES, AS RECOMMENDED BY THE jOINT LEGISLATIVE TRANSPORTATION OVERSIGHT COMMITTEE.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 136‑11 is repealed.
SECTION 2. G.S. 136‑16.10 reads as rewritten:
"§ 136‑16.10.
Allocations by Department Controller Chief Financial Officer to
eliminate overdrafts.
The Controller Chief Financial Officer of the
Department of Transportation shall allocate at the beginning of each fiscal
year from the various appropriations made to the Department of Transportation
for State Construction, State Funds to Match Federal Highway Aid, State
Maintenance, and Ferry Operations, sufficient funds to eliminate all overdrafts
on State maintenance and construction projects, and these allocations shall not
be diverted to other purposes."
SECTION 3. G. S. 136‑17.2A(d) reads as rewritten:
"(d) In each fiscal year, the Department shall, as
nearly as practicable, expend in a distribution region an amount equal to that
region's tentative percentage share of the funds that are subject to this section
and are available for that fiscal year. In any consecutive seven‑year Transportation
Improvement Plan period, the amount expended in a distribution region must
be between ninety percent (90%) and one hundred ten percent (110%) of the sum
of the amounts established under this subsection as the target amounts to be
expended in the region for those seven years.that period."
SECTION 4. G.S. 136‑18(1) reads as rewritten:
"§ 136‑18. Powers of Department of Transportation.
The said Department of Transportation is vested with the following powers:
(1) The authority and general supervision over
all matters relating to the construction construction, maintenance,
and design of the State highways, transportation projects,
letting of contracts therefore, and the selection of materials to be used in
the construction of State highways transportation projects under
the authority of this Chapter."
SECTION 5. G.S. 136‑18(12b) reads as rewritten:
"§ 136‑18. Powers of Department of Transportation.
The said Department of Transportation is vested with the following powers:
(12b) To issue "GARVEE" bonds (Grant Anticipation
Revenue Vehicles) or other eligible debt‑financing instruments to finance
federal‑aid highway projects using federal funds to pay a portion of
principal, interest, and related bond issuance costs, as authorized by 23
U.S.C. § 122, as amended (the National Highway System Designation Act of 1995,
Pub. L. 104‑59). These bonds shall be issued by the State Treasurer on
behalf of the Department and shall be issued pursuant to an order adopted by
the Council of State under G.S. 159‑88. The State Treasurer shall
develop and adopt appropriate debt instruments, consistent with the terms of
the State and Local Government Revenue Bond Act, Article 5 of Chapter 159 of the
General Statutes, for use under this subdivision. Prior to issuance of any "GARVEE"
or other eligible debt instrument using federal funds to pay a portion of
principal, interest, and related bond issuance costs, the State Treasurer shall
determine (i) that the total outstanding principal of such debt does not exceed
the total amount of federal transportation funds authorized to the State in the
prior federal fiscal year; or (ii) that the maximum annual principal and
interest of such debt does not exceed fifteen percent (15%) of the expected
average annual federal revenue shown for the seven‑year period in
the most recently adopted Transportation Improvement Program. Notes issued
under the provisions of this subdivision may not be deemed to constitute a debt
or liability of the State or of any political subdivision thereof, or a pledge
of the full faith and credit of the State or of any political subdivision
thereof, but shall be payable solely from the funds and revenues pledged
therefor. All the notes shall contain on their face a statement to the effect
that the State of North Carolina shall not be obligated to pay the principal or
the interest on the notes, except from the federal transportation fund revenues
as shall be provided by the documents governing the revenue note issuance, and
that neither the faith and credit nor the taxing power of the State of North
Carolina or of any of its political subdivisions is pledged to the payment of
the principal or interest on the notes. The issuance of notes under this Part
shall not directly or indirectly or contingently obligate the State or any of
its political subdivisions to levy or to pledge any form of taxation whatever
or to make any appropriation for their payment."
SECTION 6. G.S. 136‑18(38) reads as rewritten:
"§ 136‑18. Powers of Department of Transportation.
The said Department of Transportation is vested with the following powers:
(38) To enter into agreements with municipalities,
counties, governmental entities, or nonprofit corporations to receive funds for
the purpose purposes of advancing right‑of‑way
acquisition or the construction schedule of a project identified in the
Transportation Improvement Program. If these funds are subject to repayment by
the Department, prior to receipt of funds, reimbursement of all funds received
by the Department shall be shown in the existing Transportation Improvement
Program and shall be reimbursed within seven years of receipt. the
period of the existing Transportation Improvement Program."
SECTION 7. G.S. 136‑18(39) reads as rewritten:
"§ 136‑18. Powers of Department of Transportation.
The said Department of Transportation is vested with the following powers:
(39) To enter into partnership agreements with the
North Carolina Turnpike Authority, private entities, and authorized
political subdivisions to finance, by tolls, contracts, and other financing
methods authorized by law, the cost of acquiring, constructing, equipping,
maintaining, and operating transportation infrastructure in this State, and to
plan, design, develop, acquire, construct, equip, maintain, and operate
transportation infrastructure in this State. An agreement entered into under
this subdivision requires the concurrence of the Board of Transportation. The
Department shall report to the Chairs of the Joint Legislative Transportation
Oversight Committee, the Chairs of the House of Representatives Appropriations
Subcommittee on Transportation, and the Chairs of the Senate Appropriations
Committee on the Department of Transportation, at the same time it notifies the
Board of Transportation of any proposed agreement under this subdivision. Any
contracts for construction of highways, roads, streets, and bridges which are
awarded pursuant to an agreement entered into under this section shall comply
with the competitive bidding requirements of Article 2 of this Chapter."
SECTION 8. G.S. 136‑18(40) reads as rewritten:
"§ 136‑18. Powers of Department of Transportation.
The said Department of Transportation is vested with the following powers:
(40) To expand public access to coastal waters in its
road project planning and construction programs. The Department shall work with
the Wildlife Resources Commission, other State agencies, and other government
entities to address public access to coastal waters along the roadways,
bridges, and other transportation infrastructure owned or maintained by the
Department. The Department shall adhere to all applicable design standards and
guidelines in implementation of this enhanced access. The Department shall
report on its progress in expanding public access to coastal waters to the
Joint Legislative Commission on Seafood and Aquaculture and to the Joint
Legislative Transportation Oversight Commission no later than March 1 of each
year."
SECTION 9. G.S. 136‑28.4 reads as rewritten:
"§ 136‑28.4.
State policy concerning participation by disadvantaged minority‑owned and
women‑owned businesses in highway transportation contracts.
(a) It is the policy of this State, based on a
compelling governmental interest, to encourage and promote participation by
disadvantaged minority‑owned and women‑owned businesses in
contracts let by the Department pursuant to this Chapter for the planning,
design, preconstruction, construction, alteration, or maintenance of State highways,
roads, streets, or bridges transportation infrastructure and in the
procurement of materials for these projects. All State agencies, institutions,
and political subdivisions shall cooperate with the Department of
Transportation and among themselves in all efforts to conduct outreach and to
encourage and promote the use of disadvantaged minority‑owned and women‑owned
businesses in these contracts.
(b) At least every five years, the Department shall
conduct a study on the availability and utilization of disadvantaged minority‑owned
and women‑owned business enterprises and examine relevant evidence of the
effects of race‑based or gender‑based discrimination upon the
utilization of such business enterprises in contracts for planning, design,
preconstruction, construction, alteration, or maintenance of State highways,
roads, streets, or bridges transportation infrastructure and in the
procurement of materials for these projects. Should the study show a strong
basis in evidence of ongoing effects of past or present discrimination that
prevents or limits disadvantaged minority‑owned and women‑owned
businesses from participating in the above contracts at a level which would
have existed absent such discrimination, such evidence shall constitute a basis
for the State's continued compelling governmental interest in remedying such
race and gender discrimination in highway transportation
contracting. Under such circumstances, the Department shall, in conformity with
State and federal law, adopt by rule and contract provisions a specific program
to remedy such discrimination. This specific program shall, to the extent
reasonably practicable, address each barrier identified in such study that
adversely affects contract participation by disadvantaged minority‑owned
and women‑owned businesses.
(b1) Based upon the findings of the Department's Second
Generation Disparity Study completed in 2004, 2009 study entitled "Measuring
Business Opportunity: A Disparity Study of NCDOT's State and Federal Programs"
hereinafter referred to as "Study", the program design shall, to the
extent reasonably practicable, incorporate narrowly tailored remedies
identified in the Study, and the Department shall implement a comprehensive
antidiscrimination enforcement policy. As appropriate, the program design shall
be modified by rules adopted by the Department that are consistent with
findings made in the Study and in subsequent studies conducted in accordance
with subsection (b) of this section. As part of this program, the Department
shall review its budget and establish annual aspirational goals every
three years, not mandatory goals, in percentages, for the overall
participation in contracts by disadvantaged minority‑owned and women‑owned
businesses. These annual aspirational goals for disadvantaged minority‑owned
and women‑owned businesses shall be established consistent with federal
methodology specified in the Study, methodology, and they shall
not be applied rigidly on specific contracts or projects. Instead, the
Department shall establish contract‑specific goals or project‑specific
goals for the participation of such firms in a manner consistent with
availability of disadvantaged minority‑owned and women‑owned
businesses, as appropriately defined by its most recent Study, for each
disadvantaged minority‑owned and women‑owned business category that
has demonstrated significant disparity in contract utilization. Nothing in this
section shall authorize the use of quotas. Any program implemented as a result
of the Study conducted in accordance with this section shall be narrowly
tailored to eliminate the effects of historical and continuing discrimination
and its impacts on such disadvantaged minority‑owned and women‑owned
businesses without any undue burden on other contractors. The Department shall
give equal opportunity for contracts it lets without regard to race, religion,
color, creed, national origin, sex, age, or handicapping condition, as defined
in G.S. 168A‑3, to all contractors and businesses otherwise
qualified.
(c) The following definitions apply in this section:
(1) "Disadvantaged businessBusiness"
has the same meaning as "disadvantaged business enterprise" in 49
C.F.R. § 26.5 Subpart A or any subsequently promulgated replacement
regulation.
(2) "Minority" includes only those racial or ethnicity classifications identified by a study conducted in accordance with this section that have been subjected to discrimination in the relevant marketplace and that have been adversely affected in their ability to obtain contracts with the Department.
(3) "Women" means a nonminority person born of the female gender.
(d) The Department shall report semiannually annually
to the Joint Legislative Transportation Oversight Committee on the utilization
of disadvantaged minority‑owned businesses and women‑owned
businesses and any program adopted to promote contracting opportunities for
those businesses. Following each study of availability and utilization, the
Department shall report to the Joint Legislative Transportation Oversight
Committee on the results of the study for the purpose of determining whether
the provisions of this section should continue in force and effect.
(e) This section expires August 31, 2010 2014."
SECTION 10. G.S. 136‑66.3 reads as rewritten:
"§ 136‑66.3. Local government participation in improvements to the State transportation system.
(a) Municipal Participation Authorized. – A municipality may, but is not required to, participate in the right‑of‑way and construction cost of a State transportation improvement approved by the Board of Transportation under G.S. 143B‑350(f)(4) that is located in the municipality or its extraterritorial jurisdiction.
(b) Process for Initiating Participation. – A municipality interested in participating in the funding of a State highway improvement project may submit a proposal to the Department of Transportation. The Department and the municipality shall include their respective responsibilities for a proposed municipal participation project in any agreement reached concerning participation.
(c) Type of Participation Authorized. – A municipality is authorized and empowered to acquire land by dedication and acceptance, purchase, or eminent domain, and make improvements to portions of the State transportation system lying within or outside the municipal corporate limits utilizing local funds that have been authorized for that purpose. All improvements to State transportation systems shall be done in accordance with the specifications and requirements of the Department of Transportation.
(c1) No TIP Disadvantage for Participation. –
If a county or municipality participates in a State transportation system
improvement project, as authorized by this section, or by G.S. 136‑51
and G.S. 136‑98, the Department shall ensure that the local
government's participation does not cause any disadvantage to any other project
in the Transportation Improvement Program under G.S. 143B‑350(f)(4).
(c2) Distribution of State Funds Made Available by County or Municipal Participation. – Any State or federal funds allocated to a project that are made available by county or municipal participation in a project contained in the Transportation Improvement Program under G.S. 143B‑350(f)(4) shall remain in the same funding region that the funding was allocated to under the distribution formula contained in G.S. 136‑17.2A.
(c3) Limitation on Agreements. – The
Department shall not enter into any agreement with a county or municipality to
provide additional total funding for highway construction in the county or
municipality in exchange for county or municipal participation in any project
contained in the Transportation Improvement Program under G.S. 143B‑350(f)(4).
(d) Authorization to Participate in Development‑Related Improvements. – When in the review and approval by a local government of plans for the development of property abutting a State transportation system it is determined by the municipality that improvements to the State highway system are necessary to provide for the safe and orderly movement of traffic, the local government is authorized to construct, or have constructed, said improvements to the State transportation system in vicinity of the development. For purposes of this section, improvements include but are not limited to additional travel lanes, turn lanes, curb and gutter, drainage facilities, and other transportation system improvements. All improvements to a State transportation system shall be constructed in accordance with the specifications and requirements of the Department of Transportation and be approved by the Department of Transportation.
(e) Authorization to Participate in Project Additions. – Pursuant to an agreement with the Department of Transportation, a county or municipality may reimburse the Department of Transportation for the cost of all improvements, including additional right‑of‑way, for a street, highway improvement projects, or other transportation system improvements approved by the Board of Transportation under G.S. 143B‑350(f)(4), that are in addition to those improvements that the Department of Transportation would normally include in the project.
(e1) Reimbursement Procedure. – Upon request of the county or municipality, the Department of Transportation shall allow the local government a period of not less than three years from the date construction of the project is initiated to reimburse the Department their agreed upon share of the costs necessary for the project. The Department of Transportation shall not charge a local government any interest during the initial three years.
(f) Report to General Assembly. – The Department shall report in writing, on a monthly basis, to the Joint Legislative Commission on Governmental Operations on all agreements entered into between counties, municipalities and the Department of Transportation. The report shall state in summary form the contents of such agreements.
(g) Local Government Acquisition of Rights‑of‑Way. – In the acquisition of rights‑of‑way for any State street, highway, or other transportation project, the county or municipality shall be vested with the same authority to acquire such rights‑of‑way as is granted to the Department of Transportation in this Chapter. In the acquisition of such rights‑of‑way, counties and municipalities may use the procedures provided in Article 9 of this Chapter, and wherever the words "Department of Transportation" appear in Article 9 they shall be deemed to include "county," "municipality" or local governing body, and wherever the words "Administrator," "Administrator of Highways," "Administrator of the Department of Transportation," or "Chairman of the Department of Transportation" appear in Article 9 they shall be deemed to include "county or municipal clerk". It is the intention of this subsection that the powers herein granted to municipalities for the purpose of acquiring rights‑of‑way shall be in addition to and supplementary to those powers granted in any local act or in any other general statute, and in any case in which the provisions of this subsection or Article 9 of this Chapter are in conflict with the provisions of any local act or any other provision of any general statute, then the governing body of the county or municipality may in its discretion proceed in accordance with the provisions of such local act or other general statute, or, as an alternative method of procedure, in accordance with the provisions of this subsection and Article 9 of this Chapter.
(h) Department Authority Concerning Rights‑of‑Way. – In the absence of an agreement, the Department of Transportation shall retain authority to pay the full cost of acquiring rights‑of‑way where the proposed project is deemed important to a coordinated State transportation system.
(i) Changes to Local Government Participation Agreement. – Either the local government or the Department of Transportation may at any time propose changes in the agreement setting forth their respective responsibilities by giving notice to the other party, but no change shall be effective until it is adopted by both the municipal governing body and the Department of Transportation.
(j) Local Governments Party to Rights‑of‑Way Proceeding. – Any municipality that agrees to contribute any part of the cost of acquiring rights‑of‑way for any State transportation system shall be a proper party in any proceeding in court relating to the acquisition of such rights‑of‑way.
(k) Repealed by Session Laws 2008‑180, s. 6, effective August 4, 2008."
SECTION 11. G.S. 136‑89.189 reads as rewritten:
"§ 136‑89.189. Turnpike Authority revenue bonds.
The Authority shall be a municipality for purposes of Article 5 of Chapter 159 of the General Statutes, the State and Local Government Revenue Bond Act, and may issue revenue bonds pursuant to that Act to pay all or a portion of the cost of a Turnpike Project or to refund any previously issued bonds. In connection with the issuance of revenue bonds, the Authority shall have all powers of a municipality under the State and Local Government Revenue Bond Act, and revenue bonds issued by the Authority shall be entitled to the protection of all provisions of the State and Local Government Revenue Bond Act.
Except as provided in this section, the provisions of Chapter 159 of the General Statutes, the Local Government Finance Act, apply to revenue bonds issued by the Turnpike Authority.
(1) The term of a lease between the Turnpike Authority and the Department executed prior to July 27, 2009, for all or any part of a Turnpike Project may exceed 40 years, as agreed by the Authority and the Department.
(2) The maturity date of a refunding bond may extend to the earlier of the following:
a. Forty years from the date of issuance of the refunding bond.
b. The date the Turnpike Authority determines is the maturity date required for the Turnpike Project funded with the refunding bonds to generate sufficient revenues to retire the refunding bonds and any other outstanding indebtedness issued for that Project. The Authority's determination of the appropriate maturity date is conclusive and binding. In making its determination, the Authority may take into account appropriate financing terms and conventions."
SECTION 12. G.S. 143B‑348 reads as rewritten:
"§ 143B‑348. Department of Transportation – head; rules, regulations, etc., of Board of Transportation.
The Secretary of Transportation shall be the head of the Department of Transportation. He shall carry out the day‑to‑day operations of the Department and shall be responsible for carrying out the policies, programs, priorities, and projects approved by the Board of Transportation. He shall be responsible for all other transportation matters assigned to the Department of Transportation, except those reserved to the Board of Transportation by statute. Except as otherwise provided for by statute, the Secretary shall have all the powers and duties as provided for in Article 1 of Chapter 143B including the responsibility for all management functions for the Department of Transportation. The Secretary shall be vested with authority to adopt design criteria, construction specifications, and standards as required for the Department of Transportation to construct and maintain highways, bridges, and ferries. The Secretary or the Secretary's designee shall be vested with authority to promulgate rules, regulations, and ordinances concerning all transportation functions assigned to the Department.
All rules, regulations, ordinances, specifications, standards, and criteria adopted by the Board of Transportation and in effect on July 1, 1977, shall continue in effect until changed by the Board of Transportation or the Secretary of Transportation. The Secretary shall have complete authority to modify any of these matters existing on July 1, 1977, except as specifically restricted by the Board. Whenever any such criteria, rule, regulation, ordinance, specification, or standards are continued in effect under this section and the words "Board of Transportation" are used, the words shall mean the "Department of Transportation" unless the context makes such meaning inapplicable. All actions pending in court by or against the Board of Transportation may continue to be prosecuted in that name without the necessity of formally amending the name to the Department of Transportation."
SECTION 13. G.S. 143B‑350(f)(4) reads as rewritten:
"(f) Duties of the Board. – The Board of Transportation has the following duties and powers:
(4) To approve a schedule of all major transportation
improvement projects and their anticipated cost for a period of seven years
into the future. cost. This schedule is designated the
Transportation Improvement Program; it must be published and copies must be
available for distribution. The document that contains the Transportation
Improvement Program, or a separate document that is published at the same time
as the Transportation Improvement Program, must include the anticipated funding
sources for the improvement projects included in the Program, a list of any
changes made from the previous year's Program, and the reasons for the changes."
SECTION 14. G.S. 143B‑350(f)(13) is repealed.
SECTION 15. G.S. 159‑81(1) reads as rewritten:
"§ 159‑81. Definitions.
The words and phrases defined in this section shall have the meanings indicated when used in this Article:
(1) "Municipality" means a county, city,
town, incorporated village, sanitary district, metropolitan sewerage district,
metropolitan water district, county water and sewer district, water and sewer
authority, hospital authority, hospital district, parking authority, special
airport district, special district created under Article 43 of Chapter 105 of
the General Statutes, regional public transportation authority, regional
transportation authority, regional natural gas district, regional sports
authority, airport authority, joint agency created pursuant to Part 1 of
Article 20 of Chapter 160A of the General Statutes, a joint agency authorized
by agreement between two cities to operate an airport pursuant to G.S. 63‑56,
and the North Carolina Turnpike Authority created pursuant to described
in Article 6H of Chapter 136 of the General Statutes, Statutes
and transferred to the Department of Transportation pursuant to G.S. 136‑89.182(b),
but not any other forms of State or local government."
SECTION 16. This act is effective when it becomes law.
