ADMINISTRATION OF TRANSPORTATION LAWS
In this chapter:
I. "Commissioner" means the commissioner of transportation.
I-a. "Construction management" means a method of contracting where the state engages the services of a contractor to work with an architect or engineer. The contractor assumes risk for construction and is required to provide design phase consultation, including the evaluation of costs, schedules, implication of alternative designs, systems, and materials.
II. "Contract construction" means all construction performed in whole or in part by an independent contractor.
III. "Cost-plus contract" means one under which the payment for the work is the actual cost, plus either a fixed fee or a percentage of the cost as profit.
IV. "Department" means the department of transportation.
IV-a. "Design build" means a method of contracting where the state engages the professional services of a single entity designer/builder who is responsible for the provision of the design and construction of a project. The designer/builder can be either a single firm or a team of architect, engineer, and builder. The designer/builder contracts directly with all subcontractors and is responsible for the delivery of the completed project.
V. "Force account basis" means use of a work force directly on the state payroll, rather than an independent contractor.
VI. "Registered architect or professional engineer" means a person licensed in the state as an architect or engineer.
VII. "Project" means any construction, reconstruction, alteration, or maintenance of any highway, bridge, building, plant, fixture, facility or other item directly related to transportation. The term shall not include construction, reconstruction, alteration, or maintenance of buildings, plants, fixtures, or facilities formerly administered through the department of transportation, division of public works, or matters managed by the department of administrative services, division of public works design and construction.
IX. "Toll credits" means credits generated by previous state-funded construction, maintenance, or improvement of highways, bridges, or tunnels that may be used as a match for federal highway funds.
Source. 1950, 5:1, part 9:1, par. 1. RSA 228:1. 1981, 87:1; 558:1. 1985, 402:6, I(a)(1), (b)(1). 2005, 55:1, 2, eff. May 23, 2005; 291:16, 27, II, eff. July 25, 2005. 2012, 73:1, eff. July 22, 2012. 2017, 156:119, eff. July 1, 2017.
Section 228:2, 228:3
228:2, 228:3 Repealed by 1985, 402:39, I.
228:3-a Repealed by 2005, 291:27, III, eff. July 25, 2005.
228:4 State Transportation Projects.
I. Each state transportation project shall be built under contracts awarded to the lowest responsible bidder through competitive bidding. The following are excluded from this competitive bidding requirement:
(a) Normal highway and bridge maintenance and improvements. This includes state aided town road and bridge projects.
(b) Projects executed under RSA 481 with approval of the governor and council.
(c) Statewide transportation improvement program projects with a cost not to exceed $25,000,000 may be developed and constructed utilizing the design build concept based on a request for proposal. Such projects may be developed and constructed provided that selection is based on an objective standard and measurable criteria for evaluation of the proposals.
(d) Statewide transportation improvement program projects with a cost in excess of $25,000,000 may be developed and constructed utilizing the design build concept based on a request for proposal provided that the department first demonstrates that using the design build concept for the project in question benefits the state more than using conventional contracting methods. The department shall hold a publicly noticed hearing to take comment on its proposal to use the design build concept for a particular project. Such notice shall be provided at least 14 days prior to the hearing date. The department shall allow for a 30-day public comment period following the publicly-noticed hearing before submitting its proposed use of the design build concept to the governor and executive council for formal approval. After the governor and council approve use of the design build concept for the project, the department may solicit bids from contractors. Any contract with the selected bidder shall be submitted to the governor and council for final approval. The commissioner shall report the results of any statewide transportation improvement program project using the design build concept to the capital budget overview committee within 90 days after the completion of the project.
II. State transportation projects shall not be awarded through cost-plus contracts.
Source. 1950, 5:1, part 9:1, par. 13. 1953, 253:1. RSA 228:4. 1957, 257:1. 1959, 58:1. 1961, 223:3. 1967, 121:1. 1971, 55:1. 1972, 60:44. 1975, 329:1. 1978, 49:18. 1979, 70:1-3; 214:1. 1981, 87:1; 558:2. 1982, 15:1, 2; 38:20. 1985, 400:3. 1986, 209:5, 6. 1988, 236:2, 3. 1989, 148:1. 1998, 171:2, 3. 2003, 70:1, 2. 2004, 257:43. 2005, 55:3, 4, eff. May 23, 2005; 291:17, eff. July 25, 2005. 2009, 135:1, 2, eff. June 29, 2009.
228:4-a Competitive Bidding.
No project subject to the competitive bidding requirements of RSA 228:4 shall be awarded to any independent contractor except:
I. If the commissioner decides that the bid of the lowest bidder should be accepted, he or she shall prepare a contract of acceptance of the lowest bid within 60 days from the opening of bids. He or she shall execute the contract in the name of the state. After the contract is executed by the lowest bidder, the form of it approved by the attorney general, and the availability of funds approved by the commissioner of administrative services, he or she shall transmit the contract to the governor and council. Upon approval by the governor and council, it shall become a valid contract of the state.
II. The state reserves the right to reject any and all bids or to negotiate with the lowest responsible bidder.
III. If the commissioner decides that for just cause shown the lowest bid submitted should be rejected, he or she shall promptly transmit to the governor and council the recommendation for rejection including reasons. The governor and council shall review the recommendation and any other facts available to them, and make such determination as in their judgment shall be for the best interest of the state. They shall require a public hearing upon request of any bidder or on their own motion to fully establish such facts. Their determination shall be entered upon the records of the secretary of state.
IV. If not more than one bid is received on any state project advertised for contract construction, the commissioner may negotiate a contract for such construction upon terms which he or she may deem most advantageous to the state, subject to the approval of the governor and council. For projects built with federal aid, if any provision of this section is inconsistent with the requirements of applicable federal law and regulations, the latter shall control.
Source. 1981, 558:3. 1985, 399:3. 2005, 291:18, eff. July 25, 2005.
228:4-b Certification of Current Workers' Compensation Coverage Required.
I. Prior to any work being done by an individual contractor on any state transportation project carried out under this subdivision, such contractor, including all subcontractors and independent contractors, working on a highway, bridge, or other construction, reconstruction, alteration, or maintenance project, excluding routine maintenance operations conducted utilizing the contract rental agreement process, and excluding deliveries to and removals from a project administered by the department shall provide to the commissioner of transportation:
(a) A certificate of insurance of his or her current workers' compensation coverage in New Hampshire for the classification of work to be completed on the project;
(b) A sworn statement that this coverage shall remain in effect for the duration of his or her anticipated work on the project;
(c) A completed work certificate, provided pursuant to RSA 281-A:4-b, that shall include the total number of employees anticipated to be employed by such contractor, subcontractor, or independent contractor on the project during the contract period, delineated by the National Council on Compensation Insurance (NCCI) classification code applicable to the scope of work to be performed;
(d) A copy of the contractor's compliance with a current written safety program, if applicable, as filed with the commissioner of labor under RSA 281-A:64, II and proof of an existing joint loss management committee as required under RSA 281-A:64, III, if applicable; and
(e) The department may develop procedures to obtain the requirements in this section on an annual basis or by a prequalification procedure rather than on a project-by-project basis.
II. If any highway, bridge, or other construction contractor, subcontractor, or independent contractor who might otherwise claim an exclusion under RSA 281-A:18-a is directly performing the work on a project covered under this section, such contractor, subcontractor, or independent contractor shall comply with the provisions of this section.
III. The commissioner of labor may assess any contractor, subcontractor, or independent contractor who falsifies information or fails to comply with this section a civil penalty of up to $2,500 and in addition, such an employer shall be assessed a civil penalty of up to $100 per employee per day of noncompliance. Notwithstanding any other provision of law to the contrary, any person with control or responsibility over the decisions to disburse funds and salaries and who knowingly falsified information or knowingly failed to comply with this section shall be held personally liable for the payment of penalties under this section and such contractor, subcontractor, or independent contractor shall not be allowed to bid or work on state projects for up to 5 years. The state shall be entitled to recover from the violator all costs and fees directly associated with uncovering falsified information supplied under this section.
IV. All funds collected under this section shall be deposited into the department of labor restricted fund established pursuant to RSA 273:1-b.
V. The commissioner of labor shall appoint as many individuals as necessary to carry out the department's responsibilities under this section.
VI. On a quarterly basis, the commissioners of transportation and labor shall post electronically for public access and shall also circulate to all other public works construction or renovation awarding authorities of state government, including the college and university systems and the department of education office of building aid, a list of any highway, bridge, or other construction contractors, subcontractors, or independent contractors found to be in violation of this section, including the amount fined and the period of time such persons or entities shall not be allowed to bid or work on state projects.
Source. 2007, 323:2, 7. 2008, 1:2, eff. Jan. 4, 2008; 270:1, eff. June 26, 2008. 2019, 134:13, eff. June 25, 2019; 346:145, eff. July 1, 2019.
228:5 Repealed by 2005, 291:27, IV, eff. July 25, 2005.
228:5-a Compliance With Contracts.
The performance of contracts for all state transportation projects shall be inspected to assure compliance with the plans and specifications. The department shall require inspection service by one of the following methods: (a) by the registered architect or professional engineer or his representative, (b) by qualified personnel of a professional construction inspection company, or (c) by personnel of the department of transportation.
Source. 1981, 558:5. 1985, 402:6, I(a)(1). 1998, 171:5. 2005, 291:19, eff. July 25, 2005.
228:6 General Powers and Duties.
The department is further authorized to:
I. Cooperate with the department of administrative services in long range capital planning to meet the needs of the state, as may be requested by the governor and council and subject to their approval.
II. Assist any using agency or institution of the state in the acquisition of lands for a public use, when requested.
III. Employ such technical consultants and other assistants as may be necessary, wherever required in the best interests of the state and consistent with the policy declared in section RSA 228:4.
IV. Upon request of the department of administrative services, division of procurement and support services, inspect and test, and advise the acceptance or rejection of, all materials and supplies purchased by the division of procurement and support services.
V. Accept, subject to the approval of the governor and council, donations of money, labor and materials to be expended or used upon class I, class II or class III highways at such points or places designated by the donor, provided that in the commissioner's opinion the project is practicable and in the public interest.
Source. 1950, 5:1, part 9:1, par. 15. RSA 228:6. 1955, 36:1. 1981, 87:1; 558:6. 1985, 399:3, II. 2005, 291:20, eff. July 25, 2005. 2014, 327:59, eff. Aug. 2, 2014.
228:7 Accountability for Highway Funds.
All receipts, expenditures and accounts for the department of transportation as successor to the highway department of funds accruing to the department or from any other source, to be expended for highway purposes, shall be accounted for on a fiscal year basis, and shall be subject to the provisions of RSA 9. Said fiscal year shall conform to the general state practice.
Source. 1950, 5:1, part 9:1, par. 17. RSA 228:7. 1981, 87:1. 1985, 402:6, I(a)(1).
228:8 Bookkeeping Procedure.
The commissioner shall maintain accounts which will reflect accurately expenditures and commitments of highway funds and other funds, and which will charge the respective using agencies or institutions only for expenditures and commitments made in their accounts for their respective projects.
Source. 1950, 5:1, part 9:1, par. 18. RSA 228:8. 1981, 87:1, eff. April 20, 1981.
228:8-a Federal Assistance Grant; Appropriation.
Any sum received from the Federal Emergency Management Agency or Federal Highway Administration's Emergency Relief Program or any other federal program providing emergency assistance to the department of transportation to reimburse costs incurred for emergency response, including but not limited to, equipment rental, snow plowing, sanding, salting, flood damage response, and personnel overtime during any emergency declared shall be collected by the appropriate agency and appropriated to the department of transportation.
Source. 2017, 156:66, eff. July 1, 2017.
228:9 Diversion of Funds.
Nothing herein shall be construed to authorize or permit directly or indirectly the diversion or expenditure of highway funds for any purpose prohibited by constitutional or legislative limitation of the state or of the United States.
Source. 1950, 5:1, part 9:1, par. 19. RSA 228:9. 1955, 186:4. 1981, 87:1, eff. April 20, 1981.
228:10 Outside Activity Restricted.
No member of the department shall act as agent or representative, or engage in private consulting work for, or involving, any contractor, architect, engineer, firm or individual engaged, or interested in the performance of state contracts or whose business includes the manufacture or furnishing of equipment, materials or supplies to the state. No member of the department shall, acting as a private individual, solicit or engage in consulting or other engineering work for political subdivisions of the state. Violation of this section shall be cause for dismissal or other disciplinary action, subject to such appeal as may be provided by law.
Source. 1950, 5:1, part 9:1, par. 20. RSA 228:10. 1981, 87:1, eff. April 20, 1981.
228:11 Highway Surplus Account.
I. At the close of each fiscal year, the following shall be transferred to the highway surplus account:
(a) All revenues in excess of budget estimates which are derived from registration fees, drivers' licenses, gasoline road tolls or any other special charges or taxes with respect to the operation of motor vehicles or the sale or consumption of motor vehicle fuels, including any balance of funds received from motor vehicle road tolls not otherwise required for the payment of interest and principal on any bonds or notes previously issued or issued at some future time.
(b) All revenues from the highway garage and other sources which are in excess of budget estimates, but not including any revenues from motor vehicle fines.
(c) All unencumbered balances of all appropriation accounts in the department of transportation, except those for construction and reconstruction of highways.
II. No moneys shall be expended from the highway surplus account, except as provided in RSA 228:12.
Source. RSA 228:11. 1957, 289:7. 1967, 350:1. 1975, 505:24. 1981, 87:1. 1983, 383:15. 1985, 402:6, I(a)(1).
228:12 Transfers from Highway Surplus Account.
If the expenditure of additional funds over budget estimates is necessary for the proper functioning of the department of transportation, the department may request, with prior approval of the legislative fiscal committee, that the governor and council authorize the transfer of funds from the highway surplus account for highway purposes.
Source. RSA 228:12. 1957, 289:7. 1975, 505:25. 1981, 87:1. 1985, 402:6, I(a)(1). 1988, 119:1, eff. June 18, 1988.
228:12-a Use of Toll Credits.
The department may use toll credits as a match for federal highway funds solely for the funding of highway and road projects, projects concerning the travel of motor vehicles on such highways and roads, and the completion of the project development phase of the project named Nashua-Manchester-Concord, project number 40818, in the 2019-2028 Ten Year Transportation Improvement Plan. Any other use of toll credits shall require approval of the joint legislative capital budget overview committee, established in RSA 17-J:1, prior to moving the project forward for approval in the state 10-year transportation improvement program.
Source. 2012, 73:2, eff. July 22, 2012. 2016, 324:19, eff. June 24, 2016. 2019, 289:2, eff. Sept. 18, 2019; 346:215, eff. July 1, 2019.
228:13 Records to be Kept.
Records shall be maintained in the department which will be sufficient to provide statements of revenue and expenditures for each of the following toll roads, the Blue Star memorial highway, the so-called Spaulding turnpike and the Central New Hampshire turnpike.
Source. RSA 228:13. 1957, 259:7. 1981, 87:1, eff. April 20, 1981.
228:14 Authorization to Encumber Federal Aid.
The department of transportation is hereby authorized to encumber a total amount not to exceed one year of the regular federal aid highway appropriations. This authorization shall be a continuing authorization and shall be utilized to encumber contracts under the direction of the commissioner.
Source. RSA 228:14. 1972, 60:48. 1981, 87:1. 1985, 402:6, I(a)(1).
The department shall maintain the records of the projects involved under this authorization in the regular federal aid appropriation account already established.
Source. RSA 228:15. 1972, 60:48. 1981, 87:1, eff. April 20, 1981.
Commissioner, Deputy and Assistant Commissioners
Section 228:16 to 228:19
228:16 to 228:19 Repealed by 1985, 402:39, I.
228:20 Offices; Assistants.
The commissioner shall be provided with suitable quarters for his office and that of the department and may employ such expert, clerical and other assistance as he may deem necessary to carry out the duties incumbent upon his office, subject to the regulations of the state employees' personnel commission as to compensation.
Source. 1915, 103:3. 1921, 118:2. 1925, 178:1. 1925, 179:1. PL 83:6. 1929, 8:1. 1931, 51:1. RL 99:6. 1945, 188:1, part 10:6. 1950, 9:2. RSA 229:5. 1981, 87:1, eff. April 20, 1981.
I. The commissioner shall exercise general supervision, control and direction, on behalf of the state, over all matters pertaining to the location, route, alteration, construction, reconstruction, maintenance and discontinuance of highways constructed or maintained wholly or in part by money appropriated from the state treasury, including:
(a) The method and type of construction and kind and quality of materials to be used;
(b) The manner in which such highways shall be maintained;
(c) The designation of certain portions of such highways for one-way traffic, upon which vehicles shall proceed in one direction only;
(d) The designation of certain portions of such highways from which trucks in excess of a gross weight of 12,000 pounds or hazardous materials as described in title CFR 172.101 shall be excluded, provided, that no such designation shall prevent business operations in connection with stores, factories or any other business or industrial establishments, enterprises or warehouses along said highways;
(e) The purchase, planting and maintenance of trees and shrubs for shade, landscaping or prevention of soil erosion;
(f) The location, construction and maintenance of roadside parks; and
(g) The issuance of annual special permits for a fee of $300 for each unit for the transport of construction materials or other divisible or distributable loads notwithstanding the provisions of Title XXI where in the opinion of the commissioner energy savings or other economic considerations warrant such issuance.
II. Upon a finding that a person or corporation, which has been issued a special permit under the provisions of RSA 228:21, has violated the conditions or provisions of such special permit, the commissioner shall forthwith recall such permit and the person or corporation whose special permit has been so recalled shall be ineligible to receive any further such special permits.
III. The commissioner, upon the approval of the governor and council and the capital budget overview committee, may enter into agreements with private entities for design-build-finance-operate-maintain or design-build-operate-maintain services for transportation infrastructure projects under RSA 228:107 through RSA 228:115, provided that such projects shall be approved as part of the state 10-year transportation improvement program in accordance with RSA 240.
Source. 1901, 98:4. 1915, 103:4. PL 83:7. RL 99:7. 1945, 188:1, part 10:7. 1951, 126:1. RSA 229:6. 1978, 52:23. 1979, 344:8. 1981, 87:1, eff. April 20, 1981. 2016, 276:2, eff. Aug. 15, 2016.
228:22 Cost of Trenching for Relocation of Underground Utilities.
When the commissioner shall determine that a highway reconstruction, relocation, or maintenance project financed in whole or in part by state funds and conducted under department of transportation supervision or control necessitates the relocation of any municipally-owned subterranean utilities facilities, any trenching and backfilling required for such relocation shall be part of the cost of such reconstruction, relocation, or maintenance and shall be provided by the governmental agency which is carrying out such highway work at no cost to the municipally-owned utility, and the governmental agency shall pay the municipality for the book value (original cost less allowable depreciation) at the time the municipally-owned subterranean facility is retired. Provided, however, that if a public utility other than a municipally-owned utility makes use of a relocation trench provided for in this section, said utility shall pay the governmental agency carrying out such work its proportionate share of the cost of such trenching and backfilling. For purposes of this section, the term "municipally-owned utility" means any utility that is owned in its entirety, directly or indirectly, by a municipality or by a department, instrumentality, company, or corporation that is owned in its entirety, directly or indirectly, by a municipality. For purposes of this section, the term "municipally-owned subterranean facility" means any subterranean facility that is owned, directly or indirectly, by a municipality or by a department, instrumentality, company, or corporation that is owned, directly or indirectly, by a municipality.
Source. RSA 229:6-a. 1971, 78:1. 1981, 87:1. 1985, 402:6, I(a)(1). 2013, 274:1, eff. July 24, 2013.
228:23 Traffic and Weight Surveys.
The commissioner may conduct traffic survey interviews, truck weight surveys and such other statistical studies as he deems necessary on class I, II, III, IV and V highways for the department's use in the planning and development of the state-wide highway system.
Source. RSA 229:6-b. 1971, 96:1. 1981, 87:1. 1992, 150:1, eff. July 5, 1992.
The commissioner of transportation may purchase, through the department of administrative services, division of procurement and support services, such operating materials and supplies as may be necessary for the operation of the department. Materials or supplies requisitioned therefrom by a division of the department or by other state departments shall upon delivery be a charge against the funds of such division or other state department.
Source. RSA 229:6-c. 1973, 376:60. 1979, 434:30. 1981, 87:1. 1985, 323:3, eff. June 14, 1985; 402:6, I, b, 1. 2013, 57:1, eff. Aug. 3, 2013. 2014, 327:60, eff. Aug. 2, 2014. 2019, 134:14, eff. June 25, 2019.
228:24-a Motor Fuel Inventory.
I. The commissioner of transportation may purchase, through the department of administrative services, division of procurement and support services, such amounts of motor fuels as may be necessary for the operation of an automated state fleet fuel distribution and records management system. The commissioner is further authorized to sell motor fuel from the motor fuel inventory to all departments and institutions of the state, political subdivisions of the state, eligible nonprofit corporations operating transportation under contract with the department of transportation for elderly or disabled persons, or for the general public and agencies of the federal government. The commissioner is authorized to assess a fair and equitable charge with respect to the sale of motor fuel sufficient to defray all administrative, transportation, storage, amortization, and other costs incurred by the department in administering this account.
II. The commissioner shall only purchase diesel fuel that contains at least 5 percent biodiesel, as defined in RSA 362-A:1-a, I-b, except if such fuel is unavailable or is more costly than 100 percent petroleum diesel, in which case such purchase shall be at the discretion of the commissioner. The commissioner, when using such discretion, shall consider at a minimum any savings related to equipment maintenance and longevity that may result from biodiesel use. The commissioner is encouraged to purchase diesel fuels containing up to 20 percent biodiesel when such fuels are compatible with the vehicles served at given fuel depots. Any biodiesel blend purchased by the commissioner shall be made available as provided for in paragraph I.
Source. 1983, 423:15. 1985, 323:4; 402:6, I(b)(1). 2005, 203:3. 2008, 281:1, eff. Aug. 26, 2008; 281:2, eff. Jan. 1, 2009. 2014, 327:61, eff. Aug. 2, 2014. 2019, 134:15, eff. June 25, 2019.
228:24-b Equipment Inventory.
I. The commissioner of transportation, through the department of administrative services, division of procurement and support services, may purchase such equipment as is necessary for the operation of the department's motor vehicle fleet and construction equipment fleet.
II. The commissioner may rent or lease vehicles and equipment from the equipment inventory to all departments and institutions of the state, political subdivisions of the state and agencies of the federal government. The commissioner shall assess a fair and equitable charge with respect to the rental or lease of vehicles and equipment sufficient to defray all administrative, transportation, storage, maintenance, amortization, replacement and other costs incurred by the department.
Source. 1992, 289:36, eff. June 17, 1992. 2014, 327:62, eff. Aug. 2, 2014. 2018, 139:1, eff. July 29, 2018. 2019, 134:16, eff. June 25, 2019.
228:24-c Replacement or Acquisition of Vehicles and Construction Equipment.
The commissioner of transportation is directed to prepare an equipment acquisition plan each biennium and present such plan with his budget requirements submitted in accordance with RSA 9:4.
Source. 1992, 289:36, eff. June 17, 1992.
228:24-d Electronic Toll Collection Transponder Inventory Fund.
There is hereby established an electronic toll collection transponder inventory fund not to exceed $1,000,000, which sum is hereby authorized as a revolving fund comprised of funds in the turnpike fund that are not otherwise appropriated. The commissioner of transportation may purchase, through the Interagency Group, such electronic toll collection transponders as may be necessary for the operation of the department, which shall be a charge against the fund. All sales of electronic toll collection transponders from inventory shall be credited to the inventory fund and are hereby appropriated to the department of transportation and made available for expenditures from the inventory fund.
Source. 2007, 102:1, eff. Aug. 10, 2007.
228:25 Addition to Fund.
I. There is hereby established an inventory fund in the department of safety consisting of the initial appropriation of $1,000,000 which sum is hereby authorized as a revolving fund comprised of funds in the highway fund that are not otherwise appropriated and into which shall be deposited additional revenues derived from the number plate manufacturing fee established in this paragraph. The fund shall be nonlapsing and continually appropriated to the department. The prison shall purchase such raw materials as may be required and agreed to by the commissioner of safety in order for the commissioner of safety to issue fully reflectorized motor vehicle number plates. This purchase shall be a charge against the inventory fund and the prison shall be responsible for the control and accountability of the raw materials so charged. Said number plates shall be manufactured at the state prison. The prison shall be furnished out of said inventory account the raw materials necessary to manufacture said plates and upon receipt of the finished plates by the department of safety shall be reimbursed for their direct and indirect costs. The commissioner of safety shall, biennially, request the commissioner of administrative services to review and approve said cost rates. Notwithstanding any other provision of law, the commissioner of safety shall charge, in addition to the regular motor vehicle registration fee, a number plate manufacturing fee of $4.00 per plate at the time of issuing said reflectorized motor vehicle number plates or replacement reflectorized number plates. Said additional charge shall not give the registrant any title or other property interest in said plates. The commissioner of safety or assistant commissioner may request from time to time delivery of the number plates from the prison and shall reimburse the inventory fund by a transfer from revenue. At least 6 months prior to subsequent general issue, a transfer from revenue shall be made for all remaining finished plates in inventory. The commissioner of safety shall report to the governor, the president of the senate, and the speaker of the house of representatives, no later than 90 days after the close of the second fiscal year of each biennium, the year ending balance in the inventory fund and the department's recommendation as to when the next general issue of number plates should commence, the estimated cost of such a general issue, and the estimated annual cost to support routine plate issue and replacement without a new general issue.
III. In accordance with the provisions of paragraph I, replacement plates may be purchased from the inventory fund.
IV. If the state prison shop is unable to manufacture or deliver reflectorized motor vehicle plates in a timely manner because of an emergency interruption resulting from a riot or other unforeseen cause, as determined by the commissioner of corrections or the commissioner of safety, the commissioners shall submit a written report to the governor and council and shall request that an outside vendor be retained to manufacture said plates. If at any time the commissioner of safety or the commissioner of corrections determines that the prison cannot produce number plates at a competitive price or meet reasonable delivery schedules, the commissioner of safety shall report to the fiscal committee of the general court and the governor and council, and shall request that an outside vendor be retained to manufacture the plates. Upon approval of the governor and council, the commissioner of safety shall request the department of administrative services, division of procurement and support services to select an outside vendor in accordance with RSA 8:19.
V. The commissioner of safety, with approval of the governor, may charge the necessary expenses for the manufacture, storage, handling, issuance, and distribution of reflectorized motor vehicle number plates against the inventory fund provided under this section.
Source. RSA 229:6-d. 1977, 600:33. 1981, 54:3; 87:1; 568:63. 1985, 323:1, 2; 399:3, I. 1987, 404:1. 1997, 186:1, 4. 2002, 165:1. 2008, 158:1, eff. July 1, 2008. 2014, 327:63, eff. Aug. 2, 2014.
228:26 Borrowing Authorized.
If the moneys in the highway fund are not sufficient to provide the funds authorized by RSA 228:25, the treasurer is authorized to borrow on the state's credit at the lowest rate of interest obtainable, such sums as may be necessary to provide said funds; provided, that at no time shall the indebtedness of the state pursuant to this section exceed $1,000,000; and provided further, that such indebtedness shall be repaid from revenues within 3 years.
Source. RSA 229:6-e. 1977, 600:33. 1981, 87:1, eff. April 20, 1981.
With the approval of the governor and council the commissioner may use the funds accruing to the department for construction and reconstruction and maintenance of class I highways and bridges thereon, for aid in construction and reconstruction of class II highways and bridges thereon, for maintenance and reconstruction of class III highways, for aid in construction, reconstruction and maintenance of class IV and V highways and aid in the construction of bridges thereon, for the providing and maintenance of buildings, equipment and supplies, for highway purposes, for the costs of administration, and for such other purposes as may be provided by law. The commissioner may designate all or any part of class I, class II or class III highways for winter maintenance.
Source. 1921, 77:1. PL 83:16. RL 99:17. 1945, 188:1, part 10:8. 1949, 211:1. RSA 229:7. 1969, 22:1. 1981, 87:1, eff. April 20, 1981.
228:28 Purchase of Materials.
The commissioner may purchase, take and hold for the state such material or land as may be necessary to secure gravel, stone or other material necessary for the improvement of said highways.
Source. 1905, 35:9. PL 83:8. RL 99:9. 1945, 188:1, part 10:9. RSA 229:8. 1981, 87:1, eff. April 20, 1981.
228:29 Small Claims.
With the approval of the governor and council, the commissioner may use the funds accruing to his or her department for the payment of small claims occasioned by accidents due to the activities of his or her department. No such claim shall be paid to any one person in an amount of over $2,000. Any person claiming damage due to the activities of the department of transportation in an amount of less than $2,000 may make application to the commissioner for payment thereof. Said application shall be filed within 60 days of the date of the accident. If the commissioner upon investigation is of the opinion that the damage was caused because of activities of the department, he or she shall submit his or her recommendation to the governor and council for approval.
Source. RSA 229:8-a. 1957, 266:1. 1977, 227:2. 1981, 87:1. 1983, 110:1. 1985, 402:6, I(a)(1). 2017, 33:1, eff. July 1, 2017; 33:2, eff. July 1, 2018; 33:3, eff. July 1, 2019.
228:30 Taking; Damages.
If the commissioner is unable to purchase such material or land at what he considers a reasonable compensation he shall request the governor and council to appoint a commission to assess the damages sustained by the owner, and thereupon proceedings shall be had in the same manner as for the assessment of damages by a commission for land taken for highway purposes.
Source. 1905, 35:9. PL 83:9. RL 99:10. 1945, 188:1, part 10:10. RSA 229:9. 1981, 87:1, eff. April 20, 1981.
228:31 Acquisition and Disposal of Land or Property.
The commissioner may acquire, by agreement with the owner, lands and property or any interest therein for highway purposes in the name of the state at what he considers a reasonable compensation, and, with approval of the governor and council, may sell, convey, or lease, in the name of the state, any land or property or any interest therein which the state has acquired for highway purposes. The commissioner may authorize the use of highway funds by agreement with another state agency or with a municipality, as authorized by federal regulations, for the functional replacement of land and improvements required for highway purposes.
Source. 1945, 188:1, part 10:11. RSA 229:10. 1977, 81:1. 1981, 87:1, eff. April 20, 1981.
228:31-a Agreements for Telecommunications-Related Uses of the State Highway System and State-Owned Railroad Rights-of-Way.
The commissioner may, with the approval of the governor and council, execute contracts, leases, licenses, and other agreements relating to the use or occupation of state-owned rights-of-way, whether easement or fee-owned, for purposes of allowing the installation and maintenance of commercial mobile radio service devices. Such agreements, which shall be for commercially reasonable value, shall not extend for a period of more than 10 years. Any leases executed pursuant to this section shall be subject to the requirements of RSA 72:23 with regard to properly assessed real estate taxes and subject to local zoning and planning requirements. Said devices shall take into consideration the scenic beauty of the landscape. There shall be no advertising signs on these devices. The provisions of RSA 4:40 shall not apply to this section.
Source. 1998, 337:2, eff. June 26, 1998.
228:31-b Disposal of Highway or Turnpike Funded Real Estate.
I. For purposes of this section:
(a) "Professional real estate services" means those professional services of licensed real estate professionals, as well as incidental services that members of the profession and those in their employ may logically and justifiably perform. These services shall include at a minimum a market analysis based on the highest and best use of all excess property being sold.
(b) "Licensed real estate professional" means any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice the real estate profession in this state under RSA 331-A.
II. The general court hereby declares that it shall be the policy of the department of transportation to negotiate contracts for professional real estate services on the basis of demonstrated competence and qualifications for the type of professional services required, and at fair and reasonable prices, to sell surplus property obtained with funds derived from the highway fund or the turnpike fund.
III. The department shall publish a request for qualifications for professional real estate services to be procured. The department shall select licensed real estate professionals who have demonstrated competence and qualifications to market and sell highway and turnpike funded surplus property.
IV. The department shall prepare a description of its procedures for procurement of professional real estate services. These descriptions shall be distributed to interested professionals subject to the provisions of this section.
V. The department shall negotiate a contract with the highest qualified firm for professional real estate services at compensation which the agency determines is fair and reasonable to the state. In making such determination, the department shall take into account the estimated value, scope, complexity, and professional nature of the services to be rendered.
VI. If the department is unable to negotiate a satisfactory contract with the firm considered to be the most qualified, at a price determined to be fair and reasonable to the state, the department shall terminate negotiations with that firm. The department shall then undertake negotiations with the second most qualified firm. Failing accord with the second most qualified firm, the department shall terminate negotiations. The department shall then undertake negotiations with the third most qualified firm.
VII. If the department is unable to negotiate a satisfactory contract with any of the selected firms, the department shall select additional firms in order of their competence and qualification and continue negotiations in accordance with this section until an agreement is reached.
VIII. All requests for disposal of surplus property owned by the department of transportation shall be reviewed and approved by the long range capital planning and utilization committee prior to submission to the governor and council for approval.
IX. The sale of surplus property owned by the department which was purchased with highway or turnpike fund money shall be exempt from review by the council on resources and development under RSA 162-C.
X. All proceeds from sales of surplus property owned by the department shall be deposited in the fund from which they originated.
Source. 2005, 212:2. 2006, 194:2, 3, eff. July 29, 2006.
228:31-c Business Impacts; Department of Transportation.
For projects exceeding $5,000,000, the department of transportation shall include in its engineering and design how to mitigate effects on entry, access, or parking.
Source. 2020, 33:42, eff. July 1, 2020.
228:32 Resale of Operating Materials and Supplies.
The commissioner of transportation may sell to other departments and institutions of the state and to subdivisions of the state, materials and supplies purchased for use by the department in connection with their normal operations. He is authorized to assess a fair and equitable charge with respect to the materials and supplies, sufficient to defray all administrative, warehousing, processing, distribution and transportation costs incurred by the department in providing this service. Payments received by the department from these charges shall be credited as income added to the appropriation accounts from which the expenditures were originally charged, so that the resale of items purchased for departmental use will not cause a reduction in funds available for the operation of the department.
Source. RSA 229:10-a. 1965, 350:1. 1981, 87:1. 1985, 402:6, I(b)(1).
228:32-a Repealed by 2014, 255:2, eff. Nov. 1, 2014.
228:33 Right to Enter.
The commissioner and his agents may enter private lands to make surveys and establish boundaries of highways.
Source. 1945, 188:1, part 10:12. RSA 229:11. 1981, 87:1, eff. April 20, 1981.
228:34 Private Water Supplies.
When there is a complaint that privately owned water supplies have been destroyed or rendered unfit for use as water supplies because of construction or maintenance operations on the state highway systems, the commissioner shall investigate and determine the extent, if any, of state responsibility.
I. Upon determination that there is state responsibility the commissioner may authorize the use of highway funds to:
(a) Replace or repair the damage to the water supplies, or
(b) Pay damages in lieu of replacement or repair, or
(c) Purchase real property in lieu of replacement or repair, or
(d) Enter into agreements with water departments or governmental units to assist in extending water lines or establishing new water systems.
II. The commissioner may not authorize the use of state highway funds when it is determined that water supplies that are dug, drilled or developed after July 1, 1965 are located closer than 50 feet to highway rights-of-way and drainage ditches or both, or where the location does not allow or provide for adequate surface drainage.
III. The commissioner may issue rules and regulations in accordance with recognized standards regarding water supplies, that include, but are not limited to, quality and quantity of replaced water supplies, deficiencies other than chlorides rendering an existing supply unpotable, hardship cases, and responsibility for replacement of piping, tanks, pumps, heating systems or other fixtures.
Source. RSA 229:11-a. 1959, 225:1. 1965, 338:1. 1981, 87:1, eff. April 20, 1981.
228:35 Reestablishment of Highway Boundaries.
Whenever in the opinion of the commissioner the boundary lines, limits, or location of any class I or class II highway, or any part thereof, shall have become lost, uncertain, or doubtful, he may reestablish the same as, in his opinion, they were originally established. He shall give in hand to, or send by registered mail to the last known address of, all persons claiming ownership of or interest in the land adjoining such reestablished highway and to the owners of property within the limits thereof, and file with the town clerk of the town in which the highway is located, and with the secretary of state, maps showing the boundary lines, limits, or location of such reestablished highway and such lines, boundaries, limits and location as reestablished shall be the lines, boundaries, limits and location of such highway. Any person aggrieved by the reestablishment of such lines, boundaries, limits and location may petition for the assessment of damages to the superior court in the county where the reestablished highway is located within 60 days from the date of filing of such maps with the secretary of state, and not thereafter, and the court shall assess the damages, if any, by jury, provided such reestablished lines, boundaries, limits or location are not the same as originally established. The commissioner shall pay from the funds of his department all expenses incurred hereunder and the amount of final judgment and costs.
Source. 1939, 151:1. RL 99:8. 1945, 188:1, part 10:16. RSA 229:12. 1981, 87:1, eff. April 20, 1981.
228:36 Reclassification of Relocated Portions.
Whenever the commissioner shall alter or relocate any portion of any class I or class II highway and finds that there is further occasion to use such portion for highway purposes, he may reassign such portion to another classification; and upon reassignment of any such portion to a class V highway he shall determine, and allot, what sum, if any, the state shall contribute toward its maintenance. He may, in the exercise of his discretion, supervise and direct the expenditure of such sum.
Source. 1945, 188:1, part 10:17. RSA 229:13. 1981, 87:1, eff. April 20, 1981.
228:37 Closing Highways; Detours; Penalty.
The commissioner may close, regulate or restrict traffic over any section of any class I, class II or class III highway or bridge thereon when the public welfare or necessity so requires, or in order to perform work on any such highway or bridge by posting notices at each end of such section of highway or at each end of such bridge, and may establish and mark detours, and no town shall be liable to any person for damages or injuries caused in whole or in part by the use of such highway or bridge when such notices are posted. Any person who travels on a closed highway or bridge or who violates the provisions of such regulations or restrictions shall be fined not more than $100.
Source. 1945, 188:1, part 10:18. 1947, 215:3. RSA 229:14. 1981, 87:1, eff. April 20, 1981.
228:38 Hospital Directional Signs.
The commissioner is authorized and directed to erect on any class I, class II or interstate highway under his jurisdiction, reflective directional signs designating the route or exit to the nearest general hospital. Such signs shall be erected in those locations as the commissioner, after consultation with the local authorities, may determine to be in the best public interest, provided, the local authority gives adequate assurance to the commissioner that suitable hospital signs will be erected within the local jurisdiction at local expense as a continuation of the hospital directional signs erected hereunder. The cost for the signs and erection of such signs shall be a charge upon the highway fund.
Source. RSA 229:14-a. 1969, 159:1. 1981, 87:1, eff. April 20, 1981.
228:39 Interstate Bridges.
The commissioner with the approval of the governor and council may contract with the officials of any adjoining state or political subdivision thereof for the construction, reconstruction, and maintenance of any bridge crossing the boundary line between New Hampshire and such adjoining state on a class I or class II highway, and for the proportion which each state shall contribute towards the cost thereof.
Source. 1945, 188:1, part 10:19. RSA 229:15. 1981, 87:1, eff. April 20, 1981.
228:40 Piscataqua River Bridge; Maintenance.
I. The department of transportation is authorized to employ a permanent full time maintenance crew for the Piscataqua river bridge between the city of Portsmouth and the town of Kittery, Maine. The personnel of said crew shall be responsible for the maintenance of said bridge pursuant to the provisions of the memoranda of understanding between the state of Maine, department of transportation, and the state of New Hampshire, department of transportation, dated July 26, 1972 and February 14, 1973, and any amendments thereto or substitute agreements on the same subject that may be effected, which memoranda were ratified by the respective states by letters of reference. The maintenance crew shall be under the supervision and direction of the bridge maintenance engineer of the department of transportation.
II. Any funds received from the state of Maine for the maintenance of said bridge pursuant to the memoranda of understanding cited in paragraph I, or any amendments thereto or substitute agreements, shall be applied against the total appropriation for maintenance of said bridge.
Source. RSA 229:15-a. 1975, 420:1. 1981, 87:1. 1985, 402:6, I(a)(1).
The commissioner shall annually report to the governor and council the work done and expenditures incurred by his department for the fiscal year ending June 30.
Source. 1915, 103:6. 1923, 83:1. PL 83:17. 1931, 16:1. RL 99:18. 1943, 199:1. 1945, 188:1, part 10:20. RSA 229:16. 1961, 5:1. 1981, 87:1, eff. April 20, 1981.
228:42 Repealed by 1983, 122:7, I, eff. July 1, 1983.
228:43 Disposal of Papers and Records.
The commissioner may authorize the destruction of papers or records not having a permanent or historical value at the end of 7 years from the making thereof; provided, however, that the rules and regulations of the director of the division of archives and records management, as promulgated under RSA 5:40, may provide that designated papers or records may be destroyed at an earlier period or require their retention for a longer period.
Source. 1929, 108:1. RL 99:20. 1945, 188:1, part 10:21. RSA 229:17. 1957, 260:2. 1963, 16:1. 1981, 87:1. 2003, 97:3, eff. Aug. 5, 2003.
228:44 Certified Copies.
Copies of records, papers and plans in the office of the commissioner, when certified by the commissioner or assistant commissioner under oath to be true copies, shall be evidence in like manner as the originals.
Source. 1945, 188:1, part 10:22. RSA 229:18. 1981, 87:1, eff. April 20, 1981.
Upon the application of any county, city, town, or unincorporated place, the commissioner may furnish to it, free of charge, the services of an engineer for the purpose of consultation and advice on matters pertaining to highways.
Source. 1945, 188:1, part 10:23. RSA 229:19. 1981, 87:1, eff. April 20, 1981.
228:46 State Planning Aid.
Upon request of a city, town or unincorporated place, the commissioner shall provide any necessary road inspection services to assist cities, towns and unincorporated places to develop long-range plans relative to highway construction and maintenance. Such services may include, but are not limited to, coordinated efforts and planning activities between the commissioner and the appropriate local municipal officials to reconvey state-maintained roads to the municipality.
Source. RSA 229:19-a. 1979, 482:2. 1981, 87:1, eff. April 20, 1981.
228:46-a Repealed by 2005, 291:27, V, eff. July 25, 2005.
228:46-b Welcome Signs.
Any highway welcome sign erected at the state border by the department of transportation shall prominently display the state motto: "Live Free or Die."
Source. 2006, 160:1, eff. July 22, 2006.
228:46-c Wildlife Corridors and Habitat Strongholds.
The department of transportation shall consider wildlife corridors and habitat strongholds as defined in RSA 207:1 in road mitigation projects and where feasible as determined by the department, including stream crossings, with expansion of capacity and redesign of culverts for potential changes in precipitation and stream flow. The department shall incorporate wildlife corridors that intersect transportation infrastructure into project planning and mitigation efforts to minimize the effect of roads on wildlife connectivity, as such information is available.
Source. 2019, 243:9, eff. Sept. 10, 2019.
Advisory Supervision of Highway Agents
The commissioner may provide for the holding of meetings of town and city highway agents at convenient points within the state, at which advice and instruction shall be given relative to the care and maintenance of local highways; and any town or city highway agent attending such meetings shall be reimbursed for his time and necessary expenses while attending by the town or city which he represents.
Source. 1925, 109:1. PL 83:19. RL 99:21. 1945, 188:1, part 10:24. RSA 229:20. 1963, 7:1. 1981, 87:1, eff. April 20, 1981.
It shall be the duty of the commissioner to provide some competent representative who shall periodically confer and advise with the highway agent or agents of each town and city within the state as to the best methods of care and maintenance of local highways within the respective towns and cities.
Source. 1925, 109:2. PL 83:20. RL 99:22. 1945, 188:1, part 10:25. RSA 229:21. 1981, 87:1. 1990, 38:1, eff. May 22, 1990.
228:49 Requested Maintenance and Repair Projects.
The commissioner may, on request of any city or town, perform work of maintenance and repair, including the furnishing of labor and materials, on any town or city road, bridge or any other property used in connection with highways, or on the request of any state department or institution, perform work of maintenance and repair, including the furnishing of labor and materials, on any property of any state department or institution, under the following conditions:
I. Upon completion of such work, the commissioner shall bill the town or city, state department or institution, therefor; and the municipality or agency shall pay said bill within 30 days after the receipt thereof. Interest at the rate of 6 percent per annum may be charged upon all bills not paid when due as herein prescribed, and the commissioner may refuse to perform further work of maintenance and repair for any municipality or agency delinquent in the payment of such bill.
II. The commissioner is authorized to purchase the necessary materials and supplies required for the performance of such work including the rental of equipment. The state treasurer upon presentation by the commissioner of manifests covering said materials, supplies and rentals is authorized to pay the same from any money in the highway fund not otherwise appropriated. Payments made by cities, towns, state departments and institutions hereunder shall include charges for labor performed by personnel of the department of transportation and interest charges on delinquent accounts. These payments shall be credited to the highway fund.
III. Every workman on projects requested by cities and towns, except workmen employed by the department of transportation in its engineering force, shall be deemed to be in the employ of the city or town requesting the project and not in the employ of the state. Such city or town shall be responsible for any claims resulting from such employment.
IV. Every workman on projects requested by state departments or institutions, except workmen employed by the department of transportation in its engineering force, shall be deemed to be in the employ of the state department or institution requesting the project and not in the employ of the department of transportation. Such state department or institution shall be responsible for any claims resulting from such employment.
Source. RSA 229:22. 1959, 283:1. 1963, 82:1. 1981, 87:1. 1985, 402:6, I(a)(1). 2019, 134:17, eff. June 25, 2019.
228:50 Special Repair Projects.
Whenever the commissioner is of the opinion that the cost of repairs to a highway, structure or facility should be reimbursed, in whole or in part, by a person, company or corporation, he may, in the first instance, charge the cost of the repairs to the special account established in RSA 228:49, II and render an invoice to the responsible party. Following a final settlement of the commissioner's claim for reimbursement, the balance of the expenses in the special account, if any, shall be charged to the department's appropriate operating accounts.
Source. RSA 229:22-a. 1979, 217:1. 1981, 87:1, eff. April 20, 1981.
Classification of Special Highways
228:51 Classification Authorized.
With the approval of the governor and council the commissioner of transportation is hereby authorized to classify as a class I highway any existing or proposed public highway which is needed to provide essential highway transportation services from a military reservation or defense industry or activity to suitable transportation facilities.
Source. RSA 229:23. 1961, 87:3. 1981, 87:1. 1985, 402:6, I(b)(1).
228:52 Acceptance of Federal Funds.
The commissioner of transportation is authorized to accept federal funds for the construction, improvement or maintenance of highways classified in RSA 228:51.
Source. RSA 229:24. 1961, 87:3. 1981, 87:1. 1985, 402:6, I(b)(1).
228:53 Reversion to Previous Status.
When a military reservation or defense industry or activity is closed or it is determined that the highways classified in RSA 228:51 are no longer necessary the commissioner of transportation is authorized with the approval of governor and council to revert any such highway to its previous classification or to discontinue unneeded portions of such highways.
Source. RSA 229:25. 1961, 87:3. 1981, 87:1. 1985, 402:6, I(b)(1).
Railroads and Other Common Carriers
As used in this subdivision, the following terms shall have the following meanings:
I. "Agent for the state" shall mean the commissioner of transportation as agent for the state as that term is used in the Regional Rail Reorganization Act of 1973, and any amendments thereto or other pertinent federal legislation.
II. "Commissioner" shall mean the commissioner of transportation.
III, IV. [Repealed.]
V. "Local public bodies" shall mean municipalities and political subdivisions of the state.
VI. "Person" shall mean an individual, corporation, partnership or association, foreign and domestic.
VII. "Public mass transportation" shall mean common carrier transportation on land by passenger bus or rail, either publicly or privately owned, but not including school buses, charter or sight-seeing services, and trucking services.
VIII. "Rail properties" shall mean assets or rights, both real and personal, owned, leased, or otherwise controlled by a railroad which are used or useful in rail transportation service.
IX. "Rail service" shall mean both freight and passenger service.
Source. 1981, 568:55. 1985, 402:39, I.
228:55 Common Carriers.
I. Whenever the department shall be of the opinion, after a hearing had upon its own motion or upon complaint, that any part of a common carrier of passengers or freight within the state reasonably requires alteration or reconstruction, or that the rules, practices, equipment, appliances, or service of any common carrier in respect to transportation of persons or property within the state are unjust, unreasonable, unsafe, improper, or inadequate, the department shall determine the reconstruction or alteration reasonably required, or the just, reasonable, safe, adequate, and proper rules, practices, equipment, appliances, and service thereafter to be in force or to be provided, and shall fix and prescribe the same by order to be served upon every common carrier to be bound by the order.
II. It shall be the duty of every common carrier to observe and obey every requirement of such order so served upon it, and to do everything necessary or proper in order to secure compliance with and observance of the same by all its officers, agents, and employees.
Source. 1981, 568:55. 1985, 402:8.
228:56 Acquisition and Necessity.
Notwithstanding any provisions of the law to the contrary, the commissioner, as sole agent for the state, and with the approval of the governor and council, is authorized to acquire, by purchase or condemnation, or otherwise, such portion or portions of the rail property of any railroad corporation, including such tracks and ties, rights-of-way, land, buildings, appurtenances and other facilities necessary and required for the operation of railroads, as well as any other property found by the commissioner to be necessary for the operation of a railroad or other transportation purposes, including recreational trails. The authority to acquire such rail properties shall extend to rail properties within, as well as those not within, the jurisdiction of the Interstate Commerce Commission, and includes rail properties within the purview of the Regional Rail Reorganization Act of 1973, and any amendments thereto or other pertinent federal legislation. The acquisition of such rail properties and other property by the commissioner shall be for the purpose of the continued and future operation of a railroad or transportation corridor, including recreational trails, which is deemed to be in the public interest and which shall include the authority to sell or lease said properties. The acquisition of such rail properties and other property is declared to be a public use and to be reasonably necessary. This action may be taken in concert with another state or states as necessary to insure continued rail service and to insure continuous corridors, including recreational trails.
Source. 1981, 568:55. 1993, 267:1. 2006, 324:18, eff. Jan. 1, 2007.
228:57 Sale or Lease; Purpose.
The commissioner as sole agent for the state, with the approval of the governor and council, is authorized to sell, transfer or lease all or any part of the rail properties, and other property acquired under the provisions of this subdivision, to any responsible person, firm or corporation, for continued operation of a railroad, or other public use, provided, if necessary, approval for such continued operation, or other public use, is granted by the interstate commerce commission of the United States whenever such approval is required. Such sale, transfer or lease shall be for such price, and subject to said further terms and conditions, as in the opinion of the commissioner are necessary and appropriate to effectuate the purposes of this subdivision.
Source. 1981, 568:55. 2006, 324:19, eff. Jan. 1, 2007.
228:57-a Leasing Certain Portions of Railroad Properties.
I. Notwithstanding RSA 228:57, portions of real estate owned by the state and managed by the bureau of rail and transit in the department of transportation that are on the shores of public waters, as defined by RSA 271:20, may be leased for private, noncommercial use by owners of adjacent residentially developed properties that are either fully constructed or for which owners can demonstrate incurring substantial liabilities in a reasonable good faith reliance on the absence of controlling law or regulation, known as vested rights, prior to January 1, 2011, and that are separated from the shore only by the railroad land, as long as such use does not interfere with railroad operations. The following shall constitute sufficient evidence of vested rights:
(a) The activities are specifically identified in a building permit application that has been approved by the appropriate municipal board or official with authority over building permits prior to January 1, 2011; or
(b) At a minimum, a concrete foundation, or its equivalent, for the primary structure was installed prior to January 1, 2011.
I-a. Any property owner meeting the requirements of this section may request in writing to be allowed to lease such property from the state. However, when the adjacent property is owned by more than one individual, such as a condominium association, the association, only as a single entity, may request the lease. In no case shall more than one access point to the leased property be allowed.
II. The provisions of RSA 4:40, requiring first offering the land for lease to political subdivisions, shall not apply to this section. However, leases shall continue to be approved by the long range capital planning and utilization committee, with advice from the council on resources and development, before final approval by the governor and council.
II-a. A lease agreement under this section for the sole purpose of installing a dock or mooring shall only be made subject to the acquisition by the lessee of a dock permit from the department of environmental services or a mooring permit from the department of safety, respectively. Such a lease agreement shall state that if the dock or mooring permit is denied or revoked, the lease shall be terminated.
III. Leases shall be for a period of not more than 5 years.
IV. For new leases or renewals of existing leases on and after January 1, 2010, the cost of the lease shall be $30 per running foot per year, paid annually; provided, however, that the cost per running foot for such leases shall be adjusted by the department every 5 years according to the Consumer Price Index as determined by the Bureau of Labor Statistics.
V. Leases may be renewed after the initial lease period has expired, provided that the use of the leased property has and will remain noncommercial and private, payments have been made by the lessee according to the lease, and the activity of the railroad remains at approximately the same level or lower. The cost for the lease shall be reviewed. Such lease renewals shall not be for more than 5 years at a time.
VI. The annual income from such leases shall be deposited into the special railroad fund established by RSA 228:68, and shall be appropriated to be expended as set forth in RSA 228:69.
Source. 1994, 69:1. 1997, 310:2. 2001, 234:1. 2006, 307:6, eff. July 1, 2006. 2009, 254:2, eff. Jan. 1, 2010.
228:58 Interstate Commerce Commission Certificate.
After acquiring said railroad lines within the state of New Hampshire, the commissioner, with approval of governor and council, is authorized to assist any responsible person, firm or corporation to secure as promptly as possible after such events, from the interstate commerce commission, any order or certificate required for the performance of railroad service and to give in connection therewith such assurances or guarantees as, in his opinion, may be necessary or desirable to carry out the purposes of this subdivision.
Source. 1981, 568:55, eff. July 1, 1981.
If the commissioner is unable to acquire the rail properties of any railroad, or any part thereof, by purchase or otherwise, he or she may proceed to condemn all or any such portion of such property. In all such condemnation proceedings, the legislative determination herein made that the acquisition is for a public use and is reasonably necessary shall be prima facie evidence thereof. The procedure for any necessary condemnation proceedings shall be as set forth in RSA 498-A.
Source. 1981, 568:55. 2006, 324:20, eff. Jan. 1, 2007.
228:60 Title to Property of Railroads.
The commissioner is hereby authorized to take whatever steps are necessary in order to determine the absolute fee simple title ownership of all such rail properties of any railroad within the state of New Hampshire. Such determination is to include the status of such rail properties with respect to easements, rights-of-way, leases, reversionary rights, fee simple title ownership, and any and all title matters. The commissioner may retain such experts or other assistants as may be necessary to make these title determinations.
Source. 1981, 568:55, eff. July 1, 1981.
228:60-a Railroad Right-of-Way.
I. No railroad right-of-way in this state shall be used for any purpose that would unreasonably limit the ability to restore rail service over the right-of-way at minimum cost if such service were to be required in the future.
II. If the commissioner is unable to acquire a railroad right-of-way by purchase or otherwise, he may proceed to condemn such right-of-way pursuant to RSA 228:59. This right of condemnation shall include such land as would be necessary to bypass an area where the original right-of-way has been irrecoverably destroyed or altered.
III. Any land acquired pursuant to paragraph II may be used for recreational purposes in conjunction with the statewide trail system provided for in RSA 216-F, subject to its being made available for rail use if necessary.
IV. No railroad right-of-way that existed prior to the year 1969, except those that are in present use or have been in use by the railroads at any time since 1969, shall be subject to the provisions of this section.
V. All railroad rights of way and rail properties acquired by the commissioner or by the state are hereby declared to be owned in fee simple absolute. Any and all reversionary rights in railroad rights-of-way and rail properties which have been acquired by the state or are acquired by the commissioner by purchase, condemnation or otherwise are hereby declared extinguished as of June 18, 1991, or the date of acquisition, whichever occurs later. The commissioner shall give notice to the public of all such properties declared under this paragraph to be owned in fee simple absolute by the state by publishing a description of the properties sufficient for the identification thereof, specifying the county where the properties are located. Any such notice shall be published at least once each year for 2 years in a newspaper of general circulation in the county where the property is located. Any person damaged thereby may make claim by petition against the commissioner to the appropriate superior court within 5 years of the date of acquisition or declaration of fee simple absolute ownership. The petition shall then be referred to the board of tax and land appeals, which shall proceed as with a condemnation under RSA 498-A. The right to appeal contained in RSA 498-A:27 shall be available to the claimant or the commissioner.
VI. The commissioner is hereby authorized to negotiate with the owners of abandoned railroad lines to purchase the railroad rights-of-way. The purchase of the rights-of-way for a negotiated price shall be subject to the approval of the governor and council.
VII. Any railroad corporation exercising its right to abandon or discontinue rail service shall provide the commissioner with notice, 12 months prior to such proposed abandonment or discontinuance of service. In such notice, the railroad corporation shall provide the following information:
(a) Traffic data over the line for the previous 5 years.
(b) The acquisition cost of the line proposed to be abandoned or on which service is proposed to be discontinued.
(c) An estimate of the minimum selling price being equivalent to the value of such rail properties remaining in continued rail use.
(d) A statement describing the physical condition on the line proposed to be abandoned or on which service is proposed to be discontinued.
(e) Any other information concerning the line to be abandoned or on which service is proposed to be discontinued as deemed appropriate by the commissioner.
VIII. Any railroad corporation owning rail properties shall provide quarterly reports to the commissioner listing in detail any rail properties it sold, transferred, leased, abandoned or otherwise disposed of during the previous quarter, and any rail properties it intends to sell, transfer, lease or otherwise dispose of or abandon during the following quarter. For purposes of this paragraph, no railroad corporation shall sell, transfer, lease, or dispose of any rail properties which do not timely appear on such quarterly reports.
Source. 1981, 568:55. 1982, 42:82. 1985, 254:1. 1990, 200:1. 1991, 282:1, eff. June 18, 1991.
228:60-b Purchase Price for Rail Properties.
I. All rail properties within the state offered for sale by any railway corporation after July 1, 1990, shall be offered for sale in writing to the commissioner in the first instance. In no event shall a railroad corporation offer to sell or otherwise dispose of rail properties to any person or entity on terms or conditions more favorable than those offered to the state. The state of New Hampshire acting through the commissioner shall notify such railroad corporation in writing of its acceptance or rejection of an offer within 90 calendar days of receipt of such offer. When the commissioner accepts an offer, he or she shall promptly notify the governor and the governor's council.
II. When the governor receives notice of the commissioner's acceptance of an offer to purchase rail property, he or she shall schedule the offer for consideration by the council within 90 days of the date on the notice. The state of New Hampshire, acting through the commissioner with the approval of governor and council, may match any verifiable bona fide offer made for any rail properties within the limits of funds available to the commissioner for this purpose. In the event that the property offered for sale to the commissioner is to be purchased for other transportation purposes, including recreational trails, funds for such purchase shall be identified and provided by the state agency or political subdivision requesting the commissioner to acquire the property. The state or a political subdivision thereof shall retain title to all land purchased under the right of first refusal. Cooperative use and management agreements with state agencies or political subdivisions providing acquisition funds shall be executed for parcels acquired with other than department of transportation funds. In the event that all or any part of the parcel so acquired is needed for transportation of goods or services of any kind or for any other purpose deemed necessary by the commissioner, the contributing entity shall be entitled to a refund of contribution or replacement land as determined by RSA 4:40. Any such right of first refusal shall be offered in writing to the commissioner who shall notify such railroad corporation in writing of acceptance or rejection of such an offer within 90 calendar days of receipt of such offer.
III. If the amount of any offer is unsatisfactory to the state, the commissioner may proceed to condemn such rail properties under RSA 228:59.
Source. 1983, 100:1. 1985, 254:2. 1990, 200:2. 1993, 267:2. 2001, 114:1. 2005, 88:1, eff. Aug. 6, 2005.
228:60-c Railroad Right-of-Way Preservation.
I. The commissioner is authorized to enter into agreements, with owners of railroad rights-of-way on which railroad service has been abandoned, for preservation intact of railroad right-of-way corridors. Any such agreement shall provide:
(a) That a specifically identified railroad right-of-way including all tracks and bridges still in place shall remain intact and under single ownership for a period of at least 5 years; and
(b) Said railroad right-of-way may be used for recreational purposes in conjunction with the statewide trail system provided for in RSA 216-F, subject to its being made available for rail use if necessary; and
(c) During the period of the agreement, the railroad right-of-way shall not be subject to the tax established by RSA 82 and RSA 72:12 which would otherwise be attributable to it; and
(d) The owner of said railroad right-of-way shall be relieved from civil liability for any personal injury or property damage occurring on said right-of-way during the period of the agreement; and
(e) Whatever additional terms the commissioner deems necessary or desirable.
II. Any railroad right-of-way which is the subject of a railroad right-of-way preservation agreement pursuant to this section shall be deemed to be held for railroad use and in continuation of the railroad easement and shall not revert by operation of law to any other ownership.
III. The railroad right-of-way preservation agreements authorized by this section shall become lawful contracts of the state of New Hampshire and shall supersede any contrary state statute or common law when signed by the commissioner, approved as to form and execution by the attorney general and approved by the governor and council.
Source. 1983, 330:1, eff. Aug. 17, 1983.
228:61 Cooperation Between States.
The commissioner is authorized to cooperate with other states in connection with the purchase of any rail properties within the state of New Hampshire. The commissioner is also authorized to acquire trackage rights in other states and rail properties lying in other states in order to carry out the intention and purposes of this subdivision. In carrying out the authority conferred by this section, the commissioner shall have the right to enter general contractual arrangements for such purposes, including joint purchase of rail properties with other states and entering into leases jointly with other states affected thereby.
Source. 1981, 568:55, eff. July 1, 1981.
228:62 Planning Authority.
The commissioner shall have the power and authority to develop and promulgate plans for the development and continuation of railroad systems within the state of New Hampshire. The commissioner shall have the duty and responsibility for establishing a state plan as referred to in the Regional Rail Reorganization Act of 1973, including sections 401, 402 and 403 thereof, or any other pertinent federal legislation.
Source. 1981, 568:55, eff. July 1, 1981.
228:62-a Railroad Police.
The commissioner may recommend one or more of the employees of the division to the commissioner of safety for appointment as railroad police officers pursuant to RSA 381:2. All employees recommended for appointment shall meet the qualifications for commission set forth in RSA 381:4.
Source. 1981, 568:55, eff. July 1, 1981.
228:63 Federal Funds; Appropriations.
The commissioner is also authorized to apply for, with the approval of governor and council, loans, grants and such funds available under the provisions of the Regional Rail Reorganization Act of 1973 or other pertinent federal legislation. The commissioner may utilize federal funds, such other grants, gifts or donations as may become available and such sums as are appropriated for the purpose of acquiring rail properties and for all other purposes set forth in this subdivision.
Source. 1981, 568:55, eff. July 1, 1981.
228:64 Delinquent Railroad Taxes.
Notwithstanding any other provision of law to the contrary, there are hereby appropriated to the department and the commissioner may utilize, any delinquent state taxes and the interest due thereon to the date of acquisition from any railroad entity only as an offset against the purchase cost of any railroad property purchased from that railroad entity. Such taxes and interest hereby appropriated shall be in addition to any other funds available for the purposes of this subdivision.
Source. 1981, 568:55. 1985, 402:9.
228:65 Purchase of Rolling Stock, Equipment and Machinery.
The commissioner is authorized to purchase such railroad rolling stock, equipment and machinery as may be necessary for the operation and maintenance of any rail properties purchased by him on behalf of the state, with any funds made available for such purposes. In furtherance of such authority, the commissioner is authorized to acquire and have available a pool of equipment and machinery which may be utilized by the operators of any such rail properties for the purpose of track maintenance and other related railroad activities, upon such terms and conditions as the commissioner may determine with approval of the governor and council.
Source. 1981, 568:55, eff. July 1, 1981.
228:66 Rebuilding, Modernization and Maintenance of Rail Properties.
The commissioner is authorized to contract for the rebuilding of any rail properties, either publicly or privately owned. The commissioner is further authorized to spend any sums appropriated for such purpose as well as any other available funds for the modernization and rebuilding of any rail properties. The commissioner is also authorized to do such maintenance on any rail properties as appears necessary in the public interest. All state or federal funds appropriated for privately owned rail lines shall be expended only if the following procedures and conditions are fulfilled and incorporated into binding agreements executed by and among the state, the owner of the affected rail line, and the shippers or users who utilize said lines and who participate in the performance of the following:
I. All state funds shall be matched by the owner, shipper, or user in cash, labor, or materials in an amount equal to 20 percent of the total amount provided. All federal funds shall be matched by the owner, shipper or user in cash, labor, or materials in an amount equal to the percentage established by the Federal Railroad Administration of the total amount provided for the particular project.
II. Shippers or users participating pursuant to paragraph I shall be required to furnish assurance by signed agreement with the state to continue utilization of the line involved on an annual basis at a tonnage level of at least 80 percent of their annual tonnage average over the 3 years preceding the agreement, provided that enforcement of such assurance shall be preceded by a finding by the commissioner that any shipping rate increases during such period are reasonable.
III. Shippers or users shall make commitments to use appropriate volume and usage levels on the line.
IV. The railroad operator and its successors and assigns shall make commitments to continue service and maintenance on the lines appropriate to the volume and usage levels committed under paragraph II and at the classification level to which the lines had been rehabilitated.
V. A lien on the improved property shall be created in favor of the state in an amount which equals all, or the pro rata share, of the improvements made. The lien shall expire 10 years from the date the improvements are completed; provided that the lien shall be recorded in the registry of deeds of the county or counties in which the improved property is situated and shall not supersede any lien created by a mortgage affecting such property. The lien shall only expire if the line upon which the improvements have been made is operated and maintained for normal use for a period of 10 years subsequent to the completion of the improvements.
Source. 1981, 568:55. 1990, 200:3. 1993, 116:1, 2, eff. July 16, 1993.
228:66-a Rehabilitating Class III Railroads and Cog Railroads; Revolving Loan Fund; Bonds Authorized.
I. There is established in the office of the state treasurer a fund to be known as the class III railroad and cog railroad capital rail line rehabilitation and equipment revolving loan fund which shall be kept separate and distinct from all other funds. Moneys in the fund shall be nonlapsing and shall be continually appropriated to the bureau of rail and transit, department of transportation, and shall be spent on rehabilitating the rail lines and the purchasing of equipment of class III railroads and cog railroads, which rail lines, equipment, and railroads shall meet the requirements of the benefit/cost analysis prepared by the department of transportation's bureau of rail and transit. Loans provided to operators of class III railroads and cog railroads for rehabilitating the rail lines and equipment purchases shall be approved by the governor and council.
II. The operator of the class III railroad or cog railroad provided a loan under this section shall be required to furnish assurance by signed agreement with the state to continue utilization of the line involved on an annual basis at a tonnage level of at least 80 percent of their annual tonnage average over the 3 years preceding the agreement, provided that enforcement of such assurance shall be preceded by a finding by the commissioner that any shipping rate increases during such period are reasonable, or a continued utilization of the line involved on an annual basis at a passenger level of at least 80 percent of their prior 3 years preceding the agreement.
III. The operator of the class III railroad or cog railroad shall repay any loan funded pursuant to paragraph I on such terms and conditions as are recommended by the bureau of rail and transit, department of transportation. The term of the loan shall be no less than 5 and no longer than 20 years and shall, to the extent possible and consistent with this section, be determined so as to match the useful life of the improvements funded by the loan. The terms and conditions shall be contained in the binding agreement between the state and the operator of the class III railroad or cog railroad and shall be sufficient to fully reimburse the state for the principal and interest payments on that portion of the bonds authorized to fund the loan. All money received through reimbursement shall be deposited by the state treasurer in the class III railroad and cog railroad capital rail line rehabilitation and equipment revolving loan fund.
IV. A lien on the property and equipment of the class III railroad or cog railroad including the improved property or equipment shall be created in favor of the state in an amount which equals the sum of principal and interest to be repaid by the operator of the class III railroad or cog railroad. The lien shall be recorded in the registry of deeds of the county or counties in which the improved property is situated and shall not supersede any pre-existing lien created by a mortgage affecting such property. The lien shall expire only when the loan has been fully repaid.
V. To provide funds for the revolving loan fund established pursuant to this section, the state treasurer, as may be requested from time to time by the bureau of rail and transit, department of transportation, is authorized to borrow from time to time upon the credit of the state such amounts so that the total state obligation shall at no time exceed $4,000,000 and for said purposes may issue bonds and notes at such time in the name and on behalf of the state of New Hampshire in accordance with the provisions of RSA 6-A. The department shall request and the treasurer shall issue bonds only for such amounts from time to time as are required for the purposes of this section and provided that the principal and interest payments can be satisfied from existing sums in the fund established in paragraph I.
VI. The payments of principal and interest on the bonds issued under paragraph V shall be made when due from the special fund established by paragraph I.
VII. For the purpose of this section, a "class III railroad" shall be a freight railroad or an intrastate passenger excursion railroad.
Source. 1997, 310:3, eff. July 1, 1997.
228:67 Disposition of Acquired or Abandoned Rail Properties.
Whenever the commissioner determines that certain acquired or abandoned rail properties owned by the state pursuant to RSA 228:60-a, II; 228:60-a, VI; 228:60-b; or any other means are no longer needed, the commissioner may transfer or sell such rail properties to any other state department or agency, or political subdivision of the state, which will utilize such properties for public uses and, if no state department or agency, or political subdivision, wants such properties, the commissioner may sell them, in accordance with RSA 4:40 with the proceeds from the sale deposited into the special fund established in RSA 228:68. Such transfer or sale shall require approval of the long range capital planning and utilization committee and the governor and council.
Source. 1981, 568:55. 1986, 217:4. 1990, 94:1. 2001, 114:2. 2006, 324:21, eff. Jan. 1, 2007.
228:68 Special Fund Established.
The state treasurer shall establish a non-lapsing special fund to be known as the special railroad fund. He shall deposit in said fund proceeds from the sale or lease of any rail properties and income derived by the commissioner as a result of action taken pursuant to the provisions of this subdivision, and any special gifts, grants other than grants or portions of grants which are appropriated for a specific purpose, or donations for the purpose of this subdivision.
Source. 1981, 568:55, eff. July 1, 1981.
228:69 Appropriation and Use of Special Railroad Fund.
I. All moneys including moneys received from the railroad tax imposed by RSA 82:31, operating agreements, rentals, and permit, application, and renewal fees shall be deposited in the special railroad fund established by RSA 228:68, and are hereby appropriated to be expended by the commissioner as follows:
(a) Twenty percent of the state's receipts from each railroad operating agreement shall be distributed annually to the cities and towns through which the active state-owned railroad lines used in each such agreement pass in proportion to the active state-owned trackage present in each such city or town.
(b) With the approval of the fiscal committee and governor and council, for the purchase, operation, or maintenance of railroad properties acquired or to be acquired pursuant to the provisions of this subdivision.
(c) To provide funding for the Boston to Montreal High Speed Rail Planning and Feasibility Study for the high speed rail connection between Boston and Montreal in an amount not to exceed $85,000.
II. Notwithstanding paragraph I, the commissioner may expend up to $5,000 for each project involving the operation and maintenance of railroad properties without a special appropriation or the approval of the fiscal committee and governor and council.
Source. 1981, 568:55. 1986, 217:3. 1993, 116:3. 1996, 77:1. 1999, 304:5. 2002, 259:3. 2004, 250:7, eff. June 15, 2004.
228:70 Authorized to Employ Consultants.
The commissioner may, in support of his actions as herein authorized, engage the services of consultants for the purpose of preparing estimates for plant rehabilitation costs. Further, he may engage, as he considers necessary, the services of qualified independent consultants to perform economic feasibility studies, appraisals, title searches and legal counsel, or as otherwise necessary in carrying out the responsibilities of this subdivision.
Source. 1981, 568:55, eff. July 1, 1981.
228:71 Mass Transportation Powers.
The commissioner shall have the power to study the adequacy of public mass transportation facilities and services now available within the state, to ascertain what further facilities and services may be necessary for the economic well-being of the state, and where feasible, to take action to improve existing facilities and services where none currently exist. Without limiting the generality of the foregoing, the commissioner may:
I. Cooperate with other agencies, public or private, in studying matters arising from the urbanization of areas within the state, with special reference to public mass transportation problems arising as a result thereof;
II. Cooperate with other agencies, public or private, in the preparation of comprehensive plans for the development of urban areas;
III. Formulate, or cooperate in the formulation of, plans for unified and coordinated transportation systems with respect to urban areas;
IV. At the request of any local public body within the state, study the public mass transportation requirements thereof, and render such assistance to such local public body as may be found appropriate and practicable;
V. Acquire, purchase, hold, use, and dispose of any property, real, personal or mixed, tangible or intangible, or any interest therein, necessary or desirable for carrying out the purposes of this subdivision and to lease as lessee any property, real, personal or mixed, or any interest therein for such terms and upon such conditions as the commissioner may deem to be fair and reasonable; and to lease as lessor any property, real, personal or mixed, tangible or intangible, or any interest therein, at any time acquired by the department, for such terms and upon such conditions as the commissioner may deem fair and reasonable, and sell, transfer, and convey any property, real, personal or mixed, tangible or intangible, or any interest therein, at any time acquired by the department. Provided, however, that before acquiring any such property or interest therein, the commissioner shall submit a comprehensive plan for the use thereof to the governor and council, and shall proceed to such acquisition and use only as the governor and council shall authorize;
VI. Subject to the approval of the governor and council, operate and manage public mass transportation facilities and services acquired by the department;
VII. Employ engineering consultants, accountants, construction, financial, transportation and traffic experts and consultants, superintendents, managers and such other officers and employees as may be necessary in his judgment;
VIII. Fix and, from time to time, change schedules and rates of fare and charges for service furnished or operated by the department as in the commissioner's judgment are best adapted to insure income sufficient to meet the cost of rendering service with respect to any facility or service operated by or under contract with the department. Provided, however, that the commissioner is not empowered to operate a passenger vehicle owned or leased by the department in competition with passenger vehicles of a private carrier over routes which such private carrier operates under authorization granted by the department;
IX. Contract with private common carriers of passengers by rail or by highway for the rendering of mass transportation services, whether on behalf of the department or on behalf of any local public body; and join with similarly empowered agencies of adjacent states in the making of such contracts. Provided, that any such contract shall be subject to the approval of the governor and council;
X. Accept gifts and grants from agencies of local, state and federal governments or from private agencies or persons, and accede to such conditions and obligations as may be imposed as prerequisites to such gifts and grants; except that no gift or grant of real property or tangible personal property shall be accepted without the approval of the governor and council as provided in paragraph V of this section.
Source. 1981, 568:55. 1985, 402:10, 11.
228:72 Discontinuances of Service.
Whenever any operator of a public mass transportation system shall file with the department a petition requesting authorization to discontinue service, it shall be the duty of the commissioner, after hearing, to determine if it is in the public interest to discontinue such service, and if it shall be found that it is not in the public interest that such service be discontinued, the commissioner shall so order and prepare a plan for the continued operation or acquisition of such system. If it is found to be in the public interest for such service to be discontinued, the commissioner may so order.
Source. 1981, 568:55. 1985, 402:12.
228:73 Statutes Not Applicable.
Any regular route passenger transportation operation conducted directly by the department or by contract with the department shall not be subject to the requirements of RSA 376, provided, however, that such operations shall be subject to all safety and insurance standards as set forth by the department for similar operations.
Source. 1981, 568:55. 1985, 402:13. 1992, 150:2, eff. July 5, 1992.
228:74 Exemptions for Property.
All property of the department and all property held in the name of the state and under the jurisdiction of the department shall be exempt from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against the same. Notwithstanding any other provision to the contrary, no property, real or personal, held by the department or the state pursuant to the provisions of this subdivision, shall be subject to any state, county or local tax.
Source. 1981, 568:55. 1985, 402:13.
228:74-a Carry-Over of Federal Funds.
All Urban Mass Transportation Administration funds assigned to a New Hampshire program, which are obligated to that program until its completion, shall be carried over from one state fiscal year to the next. The length of time such funds may be carried over shall be governed by the obligated time limit assigned to the funds by the federal government.
Source. 1989, 27:1, eff. April 4, 1989.
228:75 Funding of Legal Services.
Such sums as may be appropriated for use by the department of justice for the benefit of the department and such federal funds as may be available to the department for legal services and as may be transferable to the department of justice for the provision of legal services, may be expended by the attorney general for retention of outside counsel and to offset the costs of legal services provided by the attorney general, in such proportions as the attorney general and the commissioner may agree.
Source. 1981, 568:55. 1985, 402:13.
Stocks and Other Securities of Common Carriers by Rail
228:76 Authority to Issue Securities.
A common carrier by rail lawfully engaged in business in this state may, with the approval of the department, but not otherwise, issue and sell its stock, bonds, notes and other evidences of indebtedness payable more than 12 months after the date thereof for lawful corporate purposes. The proposed issue and sale of securities shall be approved by the department when it finds that the same is consistent with the public good. Such approval shall extend to the amount of the issue authorized and the purpose or purposes to which the securities or the proceeds thereof are to be applied, and shall be subject to such reasonable terms and conditions as the department may find to be necessary in the public interest; provided, however, that the provisions of RSA 293-A shall be observed by corporations organized under the laws of this state in respect of the corporate authorization required and of other formalities to be observed.
Source. 1985, 402:14.
A common carrier by rail may, with the approval of the department but not otherwise, mortgage its present and future property, tangible and intangible, including franchises, to secure the payment of its bonds or notes, including any bonds or notes to be thereafter issued under the provisions of such mortgage; provided, however, that no such approval shall be required for any mortgage of property pursuant to after-acquired clauses of mortgages securing the payment of bonds or notes issued prior to September 1, 1951.
Source. 1985, 402:14.
228:78 Application for Leave To Issue.
Any such common carrier by rail which may apply to the department for authority to issue such securities shall file with its application a statement in reasonable detail, showing the actual cost already incurred and the estimated cost to be incurred for any of the purposes for which such securities are to be issued and the actual cost already incurred and the estimated cost to be incurred for such purposes.
Source. 1985, 402:14.
The department, after such hearing or investigation as it may deem proper, shall determine the actual or probable cost incurred or to be incurred; and, if in its judgment the issue of such securities upon the terms proposed is consistent with the public good, it shall authorize the same to an amount sufficient, at the price fixed in accordance with the laws applicable thereto, to provide funds for defraying the cost as so determined.
Source. 1985, 402:14.
Within 30 days after a final order authorizing an issue of securities, the department shall file in the office of the secretary of state a certificate setting out the amount of the securities which it has authorized and the purposes for which the proceeds thereof may be used.
Source. 1985, 402:14.
Upon any application for authority to issue securities for the purpose of providing funds for discharging any indebtedness incurred by a common carrier by rail in good faith prior to July 1, 1914, in acquiring property, or for other lawful corporate purpose, no deduction shall be made from the cost thereof, as determined by the department, on account of any estimated depreciation of plant and properties beyond the portion, if any, of such cost which it may appear has been paid out of the depreciation reserve of said common carrier by rail, if any, or out of earnings, to make good depreciation.
Source. 1985, 402:14.
228:82 Short Term Notes.
I. No common carrier by rail engaged in business within this state shall issue or renew any notes, bonds, or other evidences of indebtedness payable less than 12 months after the date thereof, except as provided in this section, by rules adopted by the department, or by specific order of the department in an individual case.
II. The department may adopt rules under RSA 541-A relative to a reasonable amount of the notes, bonds, or other evidences of indebtedness based on the amount of their respective plant investment which each carrier shall not exceed without first obtaining the approval of the department. In establishing the amounts of the notes, bonds, and other evidences of indebtedness which the carrier is permitted to issue or renew without prior department approval, the department shall consider the size, circumstances, and other characteristics of each carrier, the aggregate term of the renewals of such notes, bonds, and other evidences of indebtedness, and the time period and manner for reporting such renewals to the department.
Source. 1985, 402:14.
228:83 Foreign Business.
Common carriers by rail carrying on business both within and without this state shall not be subject to the provisions of RSA 228:76-82 when the stock or obligations are to be issued for the acquisition of property, the construction, completion, extension or improvement of their facilities, or the improvement or maintenance of their service entirely without this state, or the discharge or refunding of their obligations or reimbursement of money actually expended for such purposes.
Source. 1985, 402:14.
228:84 Capitalization of Franchises.
The department shall have no power to authorize the capitalization, directly or indirectly, of any franchise to be a corporation, or of any franchise or any right to own, operate or enjoy any franchise whatever in excess of the amount (exclusive of any tax or annual charge) actually paid to the state or to a political subdivision thereof as a consideration for the grant of such franchise or right, all such franchises, rights and privileges being granted in the public interest only, and not justly subject to capitalization against the public.
Source. 1985, 402:14.
228:85 Unincorporated Utilities.
No unincorporated person or partnership acting as a common carrier by rail shall be required to apply to the department for authority to issue notes or bonds unless the same are to be secured by mortgage of property devoted to public use.
Source. 1985, 402:14.
228:86 Application of Proceeds.
No common carrier by rail shall apply the proceeds of any stock, bonds or notes to any other purpose than those specified in the order of the department authorizing the issue of the same.
Source. 1985, 402:14.
Every common carrier by rail issuing stocks, bonds or other evidence of indebtedness subject to the provisions hereof shall file with the department an account showing, in such detail as the department shall require, the disposition of the proceeds of such issue.
Source. 1985, 402:14.
228:88 Foreign Corporations.
Any foreign corporation which shall engage in intrastate business as a common carrier by rail within this state after May 1, 1919, shall be subject to the provisions of RSA 228:76-92, and, by applying for authority to begin or by continuing to engage in such intrastate business after said date, shall be deemed to have consented to said provisions as a condition precedent to its right to engage in such intrastate business.
Source. 1985, 402:14.
228:89 Common Carriers.
A common carrier by rail for any corporate purpose approved by the department, upon petition of the corporation, may, from time to time, with the authority of the department as provided in RSA 228:76-92, increase its capital stock or bonds beyond the amounts fixed and limited by its articles of association or its charter or by any act of the general court.
Source. 1985, 402:14.
Whenever a common carrier by rail organized under the laws of this state shall issue (1) additional shares of its capital stock having unconditionally the general right to vote or (2) securities convertible into shares of such capital stock, it shall, except as hereinafter provided, first offer such shares or convertible securities proportionately to holders of its stock having such voting right in such manner as shall have been determined by its directors; provided, however, that if the charter, articles of agreement or stockholder votes authorizing the outstanding stock have limited or eliminated the rights of holders of such outstanding stock to subscribe to such shares or convertible securities, such offer need not be made, except to the extent, if any, required by said charter, articles of agreement or votes.
Source. 1985, 402:14.
228:91 Stockholders' Liability.
Whenever a common carrier by rail incorporated under the laws of this state shall apply to the department for authority to issue any stock requiring the approval of the department, the stockholders shall not become individually liable for debts and contracts of the corporation under RSA 296:30, if the amount of stock which the department authorized the corporation to issue upon any such application is paid in and a certificate of the treasurer and a majority of the directors to that effect is executed, filed and recorded in the manner provided by RSA 296:30 within 90 days after the filing in the office of the secretary of state of the order of the department authorizing the issue of such stock; provided that, in cases where such stock is an increase of prior capital, the whole amount of the prior capital as theretofore fixed and limited by the corporation, or so much thereof as the stockholders have voted to issue, or as the department has authorized to be issued, has also been paid in and that the certificate so filed by the treasurer and directors shows that fact.
Source. 1985, 402:14.
I. Any common carrier by rail which is subject to the provisions of 49 U.S.C. section 11301 shall be subject to the provisions of RSA 228:82 but shall not be subject to any of the other provisions of this subdivision.
II. Any common carrier which is subject to RSA 375-A or RSA 376 shall not be subject to the provisions of this subdivision.
Source. 1985, 402:14. 2013, 100:8, eff. Aug. 23, 2013.
Regional Highway Conferences
Section 228:93 to 228:97
228:93 to 228:97 Repealed by 2006, 27:1, eff. May 30, 2006.
Statewide Intermodal Transportation Planning and Improvement Program
228:98 Statement of Purpose.
The purpose of this subdivision is to enable New Hampshire to respond to the planning and improvement objectives of the federal Intermodal Surface Transportation Efficiency Act, as amended.
Source. 1994, 283:1, eff. July 1, 1994.
228:99 Statewide Transportation Improvement Program (STIP).
The governor shall develop a statewide transportation improvement program as required by 23 U.S.C. sections 134 and 135, as amended. The governor shall revise and update the program every 2 years. Adoption of the STIP and revised STIP shall be as follows:
I. Each metropolitan planning organization and rural regional planning commission shall reach agreement with the department of transportation relative to funding unified planning work programs consistent with 23 U.S.C. sections 134 and 135 no later than December 1 of each even-numbered year. Each metropolitan planning organization and rural regional planning commission shall provide a regional transportation improvement program (TIP) to the department of transportation no later than April 1 of each odd-numbered year. Such plans shall include a public involvement plan and education initiative to ensure early and adequate input from residents, municipalities and any other interested parties in New Hampshire.
II. The commissioner shall submit the tentative STIP in accordance with the state planning process as required in 23 U.S.C. section 135 to the governor's advisory commission on intermodal transportation no later than July 1 of each odd-numbered year.
III. The governor's advisory commission on intermodal transportation shall conduct at least one public hearing in each executive council district to present the tentative STIP to the public and to receive the public's comments and recommendations regarding the program. The governor's advisory commission on intermodal transportation shall submit such program along with the commission's recommendations to the governor no later than December 1 of each odd-numbered year. Each metropolitan planning organization and rural regional planning commission should conduct an informational meeting after the commission submits its recommendations to receive the public's final comments and recommendations regarding the proposed programs before adoption by the governor.
IV. The governor shall submit the STIP to the general court to be acted on no later than January 15 of each even-numbered year. After an enactment by the general court of the STIP or by June 1 of each even-numbered year, whichever is earlier, each metropolitan planning organization and rural regional planning commission should continue its public involvement program by conducting at least one informational meeting concerning the STIP.
Source. 1994, 283:1, eff. July 1, 1994.
228:100 Governor's Advisory Commission on Intermodal Transportation (GACIT) Established.
There is established a governor's advisory commission on intermodal transportation. The members of the commission shall include the members of the executive council. The commissioner of the department of transportation shall serve as a nonvoting member of the commission.
Source. 1994, 283:1, eff. July 1, 1994. 2012, 193:6, eff. June 11, 2012.
Park and Ride Facilities
In this subdivision:
I. "Intermodal transportation" means the movement of passengers from one mode of transport to another.
II. "Park and ride facility" means parking lots and related facilities, including terminals, intended for use by commuters, persons engaged in intermodal transportation, and persons sharing a motor vehicle by carpooling or vanpooling.
Source. 2008, 210:1, eff. Aug. 15, 2008.
228:102 Power to Operate Facilities.
The commissioner shall have the power to establish, operate, maintain, and improve park and ride facilities that are part of the state highway system and to ascertain what further facilities, improvements, or parking fees may be necessary for the efficient operation of the park and ride facilities and the economic well-being of the state. When appropriate the commissioner shall consult with transportation operators on site.
Source. 2008, 210:1, eff. Aug. 15, 2008.
228:103 Restricted Use of Park and Ride Facilities.
I. Park and ride facilities are intended for the short-term use of motorists using carpools, vanpools, public transportation, or intermodal transportation.
II. The commissioner may control and manage park and ride facilities to ensure that the intended uses have priority over any other use. The commissioner may delegate authority under this paragraph to an entity with which the commissioner contracts to operate such a facility.
Source. 2008, 210:1, eff. Aug. 15, 2008.
228:104 Removal and Disposition of Abandoned or Illegally Located Vehicles and Other Devices.
I. No person shall park or otherwise leave any vehicle, trailer, equipment, or other device at a park and ride facility in violation of any official sign regulating parking at the facility.
II. The commissioner may remove, tow, impound, and dispose of, or arrange for or order the removal, towing, impoundment, or disposal of vehicles, trailers, equipment, or other devices abandoned at a park and ride facility or parked or located in violation of paragraph I, or for any reason set forth in RSA 262:32. Each vehicle, trailer, equipment, and other device removed, towed, or impounded by or on behalf of the commissioner or the commissioner's designee shall be stored at a secure location until it is claimed by the person lawfully entitled to possession of the vehicle.
III. The commissioner may contract with an entity or entities to enforce the provisions of paragraph II, and may allow the entity to assess reasonable towing, storage, and other related fees.
IV. Notwithstanding the provisions of RSA 259:4-a, or any other provision of law, the commissioner may enforce RSA 262:31 through RSA 262:40-c relative to the removal and impoundment of abandoned vehicles.
(a) The commissioner of transportation or the commissioner's designee shall have any power, duty, or responsibility assigned to the commissioner of safety or a head of a law enforcement agency under RSA 262:31 through RSA 262:40-c.
(b) A designated employee of the department of transportation, or of an entity under contract with the department of transportation, shall have any power, duty, or responsibility assigned to an "authorized official" under RSA 262:31 through RSA 262:40-c.
Source. 2008, 210:1, eff. Aug. 15, 2008.
228:105 Authority to Enter Into Agreements.
The commissioner may enter into agreements with federal, state, or local agencies or other entities to assist with the planning, construction, maintenance, and management of park and ride facilities.
Source. 2008, 210:1, eff. Aug. 15, 2008.
Bureau of Visitor Service
228:106 Repealed by 2011, 224:194, eff. July 1, 2011.
Public-Private Partnership Projects
228:107 Public-Private Partnership Infrastructure Oversight Commission Established.
There is established a public-private partnership transportation infrastructure oversight commission to consider and recommend to the commissioner of transportation projects that may be suitable for delivery using design-build-finance-operate-maintain or design-build-operate-maintain services. The commission shall act as an advisory board during the execution of a public-private partnership project, supporting the department in the development of a request for proposals and in the preparation of agreements for public-private partnership projects.
Source. 2016, 276:3, eff. Aug. 15, 2016.
I. The commission established in RSA 228:107 shall have the following members: 2 members who shall reside in different geographic regions of the state, to be appointed by the governor for terms of 2 years; 2 members to be appointed by the president of the senate for terms of 2 years; 2 members to be appointed by the speaker of the house of representatives for terms of 2 years; and one member to be appointed by the state treasurer, who shall not be an employee of the state treasurer, for a term of 2 years. The commissioner, or designee, shall serve as a non voting member of the commission.
II. Each member of the commission shall be an expert with experience in the fields of transportation law, public policy, public finance, management consulting, transportation, or organizational change; provided that one of the members appointed by the governor shall be an expert in the field of public finance, and one member appointed by the governor shall be an expert in the field of transportation. The governor shall appoint a chairperson from among the members. The members may be eligible for reappointment; however, no member shall serve for more than 3 terms.
III. No person shall be appointed a voting member of the commission who is registered or was registered within the prior one-year period with the secretary of state as a lobbyist under RSA 15; no voting member shall have been a member or employee of the general court or an employee of the executive branch for a period of 6 months prior to his or her appointment; and no member shall have been employed by an organization that has business before the commission, for a period of at least one year prior to his or her appointment.
IV. The commissioner shall call the first meeting within 90 days of the effective date of this section.
V. Members of the commission shall receive mileage at the state employee rate when attending to the duties of the commission.
Source. 2016, 276:3, eff. Aug. 15, 2016.
I. The commission shall:
(a) Establish a general framework for public-private partnership contracts that establishes a process for the submission and evaluation of all such projects and provides a format and forms to enable the bidder to comply with the requirements including terms and conditions.
(b) Provide for the submission of unsolicited proposals, including setting qualification criteria for unsolicited proposals and establishing a process for evaluating unsolicited proposals.
(c) Provide a method and structure for using public advisors for strategic planning, proposal evaluations, and project monitoring and utilize public professionals on a case-by-case basis.
(d) Perform an analysis to determine whether a project is suitable for a public-private partnership whenever the department notifies the commission of its intent to pursue a public-private partnership contract.
(e) Hold a minimum of 2 publicly noticed hearings per project to establish whether public-private partnership is the appropriate procurement method. Such notice shall be provided at least 14 days prior to the hearing date. The commission shall allow for a 30-day public comment period following the publicly noticed hearing.
(f) Make recommendations to the commissioner, subject to the approval of the governor and council and the capital budget overview committee, concerning the use of public-private partnerships for certain projects.
(g) Upon approval of the governor and council and the capital budget overview committee, the commission shall support the department in the development of a request for proposals.
(h) Provide criteria for qualifications to bid per project, including but not limited to, adequate equipment to perform, financial stability, and proven record on projects of this type.
(i) Assure that any public-private partnership agreement is advanced in accordance with the department's design, permitting, and right of way acquisition process and complies with all federal and state design criteria.
(j) Estimate the costs associated with hiring qualified private and public support personnel to advance and oversee any public-private partnership contract.
(k) Hold a minimum of one publicly noticed hearing per project to solicit public feedback concerning the draft request for proposals. Such notice shall be provided at least 14 days prior to the hearing date. The commission shall allow for a 30-day public comment period following the publicly noticed hearing.
II. Once the commission is satisfied that the request for proposals is complete, governor and council approval shall be obtained before it is released by the department.
Source. 2016, 276:3, eff. Aug. 15, 2016.
Whenever the department notifies the commission that it is contemplating the use of a public-private partnership contract for design-build-finance-operate-maintain or design-build-operate-maintain services, the department shall submit a written request to the commission for its consideration. The commission shall provide an initial written response to the request to consider a public-private partnership contract within 15 days. No request for proposals shall be issued by the department for a public-private agreement for design-build-finance-operate-maintain or design-build-operate-maintain services without the commission's written recommendation and concurrence by governor and council of both the procurement method and content of the request for proposals.
Source. 2016, 276:3, eff. Aug. 15, 2016.
228:111 Commission Report.
The commission shall issue the following reports:
I. Within 6 months of the first meeting of the commission a copy of the framework establishing the process for the submission and evaluation of public-private partnership projects shall be provided to the chairpersons of the public works and highways committee and the senate transportation committee and the governor and council. The framework shall include the process for the submission of both solicited and unsolicited proposals and a process for evaluating such proposals. It shall also include how public advisors may be utilized for planning, evaluating, and monitoring of projects.
II. Annually thereafter, a report on the work of the commission shall be provided to the individuals listed in paragraph I, including but not limited to, the number of projects reviewed, the recommendations for such projects, and the number of requests for proposals being developed.
Source. 2016, 276:3, eff. Aug. 15, 2016.
228:112 Project Reports.
I. For each request to establish a public-private partnership contract for design-build-finance-operate-maintain or design-build-operate-maintain services, the commission shall report on issues surrounding the project including, but not limited to:
(a) The impact on current state employees.
(b) The policy and regulatory structure for overseeing a privately operated transportation facility and ongoing legislative oversight.
(c) Issues of taxation, profit-sharing, and resolution of new revenue producing ideas.
(d) Advertising and marketing.
(e) Use of new technologies.
(f) Lease terms and termination clauses.
(g) Additional responsibilities by both the private infrastructure operator and the state during the lease period.
(h) The financial valuation of the state transportation facility.
(i) Issues of public concern.
(j) The anticipated advantages of entering into the anticipated public-private agreement for design-build-finance-operate-maintain or design-build-operate-maintain services.
II. The report shall be delivered within 30 days of the commission's recommendation concerning the use of design-build-finance-operate-maintain or design-build-operate-maintain services to the chairpersons of the public works and highways committee and the senate transportation committee and the governor and council.
Source. 2016, 276:3, eff. Aug. 15, 2016.
228:113 Contributions from Other States.
When a project involves one or more other states, the commissioner may receive and accept capital contributions and funding from such other states and may approve the transfer of support personnel and experts.
Source. 2016, 276:3, eff. Aug. 15, 2016.
228:114 State and Federal Funding.
Any public-private partnership projects shall be approved as part of the state 10-year transportation improvement program in accordance with RSA 240.
Source. 2016, 276:3, eff. Aug. 15, 2016.
228:115 Liability Insurance.
Any contract for public-private design-build-finance-operate-maintain or design-build-operate-maintain services shall provide for securing and maintaining a liability insurance policy for contractors and engineers in the design phase of a project which shall be limited to 10 percent of the cost of such project. A certificate of liability compliance shall be included in the bid. Any such contract shall require a bond under RSA 447:16 for the design-build and bonds, letters of credit, or other forms of security for the operations and maintenance phases of the project.
Source. 2016, 276:3, eff. Aug. 15, 2016.
Coastal Risk and Hazards Preparedness
228:116 Coastal Risk and Hazards Preparedness.
If abandonment of any state highway is considered because of sea-level rise, storm surge, and extreme precipitation events, or in anticipation of such events as projected by the Coastal Risk and Hazards Commission final report, "Preparing New Hampshire for Projected Storm Surge, Sea-Level Rise, and Extreme Precipitation," and subsequent science and technical advisory panel reports under RSA 483-B:22, the department of transportation shall coordinate procedures with affected municipalities, the Rockingham planning commission, the Strafford regional planning commission, the department of business and economic affairs, and with business, real estate, tourism, and other affected economic interests. The process shall also consider mitigation policies and potential funding for owners of affected properties served by such roadways and projected impacts to the environment and natural and cultural resources. The final approval for such projects and related funding shall be through the 10-year plan process and shall be included in the 10-year plan.
Source. 2019, 318:6, eff. Oct. 2, 2019.