(a) Eligibility requirements. The executive director, in cooperation with an HOV authority with which the department contracts under this subchapter, will establish eligibility requirements for vehicles authorized to use HOV 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) the level of service on the HOV lanes;
  (2) the level of service on general purpose lanes that are part of the highway facility on which HOV lanes are located or are proposed to be located;
  (3) the consistency of the requirements with eligibility requirements established for any connecting facilities;
  (4) the availability of alternative routes and the level of service on those routes;
  (5) the effect of the requirements on transit operating efficiency; and
  (6) the effect of the requirements on roadway safety and air quality.
(b) Toll charges.
  (1) The commission by minute order, or its designee, will establish charges for the use of toll lanes or the commission will authorize an HOV authority or toll entity with which the department contracts to set the amount of toll charges. 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 or its designee will consider the results of traffic and revenue studies and operational plans prepared by the department or an HOV authority or toll entity with which the department contracts under this subchapter, and the criteria prescribed in subsection (a) of this section.
  (2) A governmental entity that contributes substantial funding for a toll lane project may recommend a toll charge to be set by commission minute order or its designee. The commission or its designee will approve the recommended toll charge if the commission, or its designee, determines that the charge:
    (A) is consistent with the criteria described in paragraph (1) of this subsection; and
    (B) complies with the requirements of any trust agreement, indenture, or other instrument securing debt financing for the project.
(c) Administrative fee. The commission by minute order, or an HOV authority or toll entity with which the department contracts by order of its governing body, will establish an administrative fee charged to owners of vehicles that use toll lanes established under this subchapter without paying the proper toll. In establishing an administrative fee, the commission will consider:
  (1) the estimated cost to the department to collect unpaid tolls on tolled lanes on the state highway system; and
  (2) the existing or estimated violation rate on tolled lanes on the state highway system.
(d) Operating agreements. The department may enter into an agreement with an HOV authority or toll entity to operate one or more HOV or toll lanes. The agreement will contain terms necessary for the safe and efficient operation of the HOV or toll lane, including, but not limited to:
  (1) an operations plan that includes occupancy requirements, hours of operation, and provisions for law enforcement and incident management;
  (2) responsibilities for maintenance of the facilities;
  (3) insurance and audit requirements;
  (4) responsibilities for setting toll charges and administrative fees;
  (5) indemnification of the department; and
  (6) distribution of revenue between the department and the HOV authority or toll entity.

Source Note: The provisions of this §25.43 adopted to be effective September 19, 2002, 27 TexReg 8778; amended to be effective May 20, 2004, 29 TexReg 4930