TITLE 43. TRANSPORTATION

PART 10. TEXAS DEPARTMENT OF MOTOR VEHICLES

CHAPTER 218. MOTOR CARRIERS

The Texas Department of Motor Vehicles (department) proposes amendments to Chapter 218, Motor Carriers, Subchapter B: §218.13, Application for Motor Carrier Registration; and §218.17, Unified Carrier Registration System; and Subchapter E: §218.56, Proposals and Estimates for Moving Services; §218.57, Moving Services Contract; §218.65 Tariff Registration; and Subchapter F: §218.73 Administrative Proceedings. The department also proposes new Subchapter F: §218.75, Cost of Preparing Agency Record. In addition, the department proposes the repeal of Subchapter F: §218.74, Settlement Agreements.

EXPLANATION OF PROPOSED AMENDMENTS, NEW SECTION, AND REPEAL

Most of the proposed amendments resulted from over 16 meetings of department staff who are members of the Motor Carrier Credentialing System (MCCS) Working Group. The mission of the MCCS Working Group is to expand the web-enabling capabilities of MCCS and to facilitate certain enhancements to MCCS through an orderly and reasoned process. The overriding purposes of the MCCS Working Group meetings to date were to: 1) improve the credentialing process to protect the consumers who use the services of motor carriers; and 2) automate the credentialing process to ultimately enable all motor carriers to apply online through MCCS to obtain operating authority.

The amendments to §218.13 require the motor carrier applicants to provide additional information and documents, which will protect the consumers and improve safety by helping the department and law enforcement to identify the motor carrier. For example, applicants who are individuals will be required to provide information from a list of identification documents, so the department can verify the identity of the individual. Applicants who are entities will be required to provide their Texas Comptroller's Taxpayer Number or their Federal Employer Identification Number, which will help the department identify the applicant and verify whether the applicant is a valid legal entity by using databases from other state agencies, such as the Texas Secretary of State's Office.

The amendments also help the department administer and enforce Chapter 218 and Transportation Code, Chapter 643. For example, the amendments help the department determine whether the applicant is a chameleon carrier or reincarnated carrier, which is a carrier that attempts to reinvent itself or to operate affiliated companies to avoid the consequences of prior violations of the laws, rules, and/or regulations. The people who operate chameleon carriers will create a new business entity or operate affiliated companies because they would not qualify for a certificate of registration because of a prior revocation or unpaid penalties for prior violations. See Transportation Code, §§643.054(a-1) and 643.2525(k) and (l). One of the amendments requires all applicants to complete the New Applicant Questionnaire, which helps the department comply with Transportation Code, §643.054. Section 643.054 authorizes the department to deny registration if the applicant is a chameleon carrier.

The Federal Motor Carrier Safety Administration (FMCSA) passed regulations to deal with chameleon carriers and cited to a fatal bus crash in Sherman, Texas in 2008, in which at least 17 people died and dozens of people were injured. The motor carrier involved in the bus crash was a reincarnation of another bus company that FMCSA had recently placed out of service. See 77 FedReg 24865 (April 26, 2012).

The amendments help the department comply with Family Code, §231.302, which requires state agencies to require license applicants to provide their social security number if they are an individual. The department is required to provide any social security numbers to the Texas Office of the Attorney General upon request. One amendment requires entities to provide either their Texas Comptroller's Taxpayer Number or their Federal Employer Identification Number, which will help the department verify whether an applicant is really a legal entity or an individual. If the applicant is an individual, the department requires the individual to provide a social security number, as required by Family Code, §231.302.

The amendments also require the motor carriers that obtain a certificate of registration to review certain information, such as their physical address, in MCCS every six months and to update the information if it is no longer correct. The department's Enforcement Division, as well as law enforcement, need certain current information to contact motor carriers to investigate, inspect records, and take any necessary enforcement action. Some motor carriers have had the same active certificate of registration for tens of years, and they may forget to update their contact information. The department's Enforcement Division has attempted to investigate certain motor carriers by going to the address on file with the department, only to find an empty parking lot at the address.

The amendments require household goods carriers and passenger carriers to provide a copy of the lease and certain information about the lessor, so the department can link a vehicle to the motor carrier that is leasing the vehicle and so the department can verify that the vehicle is registered under Transportation Code, Chapter 643. Household goods carriers and passenger carriers have more opportunity to cause harm to their customers, so the department needs more information from these carriers to protect the customers, as well as the traveling public. For example, if a household goods carrier leases a U-Haul truck that is used to steal a consumer's household goods, the lease information will help the department, as well as law enforcement, link the leased vehicle to the motor carrier.

An amendment requires household goods carriers to certify that they have procedures that comply with Code of Criminal Procedure, Article 62.063(b)(3), which prohibits certain people who are required to register as a sex offender from providing moving services in the residence of another person without supervision. This requirement helps to protect the consumers who use the services of a household goods carrier.

An amendment denies a seven-day or 90-day certificate of registration to a passenger carrier, unless approved by the director of the Motor Carrier Division, because of the time and resources involved in processing applications for passenger carriers. The department spends more time reviewing applications for passenger carriers because of the potential harm to a large number of people. The bus crash in Sherman, Texas in 2008 is just one example of a fatal passenger carrier accident. In response to several fatal passenger carrier accidents, the Texas Legislature amended Transportation Code, §643.252 in 2009 to require the department to deny registration to a for-hire passenger carrier if the carrier is required to register with FMCSA, and the federal registration is denied, revoked, suspended, or otherwise terminated.

An amendment to §218.17 incorporates the latest version of the Unified Carrier Registration Agreement (Agreement). The Unified Carrier Registration System plan and agreement is a federal motor carrier registration program authorized by 49 USC §14504a and 49 CFR Part 367. The participating states signed the Agreement, which implements the federal law and regulations.

Amendments to §218.56 and §218.57 authorize the household goods carriers and the consumers to use electronic documents and electronic signatures, so the parties can benefit from the convenience of modern technology.

Amendments to §218.65 delete language that conflicts with statute and update language because a new applicant might not have a certificate of registration.

Amendments to §218.73 allow more flexibility regarding settlement agreements and include language from §218.74. Section 218.74 is proposed for repeal in order to consolidate the language regarding administrative proceedings into §218.73. Amendments to §218.73 also inform motor carriers of the current law and rules which govern any proceedings under Chapter 218 and Transportation Code, Chapter 643 at the State Office of Administrative Hearings.

New §218.75 requires the party who appeals a final decision to pay the costs of preparing the record the department is required to file with the reviewing court, unless the department grants a waiver. It is equitable to make the party who appeals the decision pay the costs to prepare the record.

Other amendments update the rules to be consistent with current practice and to correct grammatical errors.

FISCAL NOTE

Linda M. Flores, Chief Financial Officer, has determined that for each of the first five years the amendments, new section, and repeal as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the proposed amendments.

Jimmy Archer, Director of the Motor Carrier Division has determined that there will be no anticipated impact on local economies or overall employment as a result of enforcing or administering the proposed amendments, new section, and repeal.

PUBLIC BENEFIT AND COST

Mr. Archer has also determined that for each year of the first five years the amendments, new section, and repeal are in effect, the public benefit anticipated as a result of enforcing or administering the amendments will be greater protection for the consumer, improved public safety, and convenience for the motor carrier and shipper. There are no anticipated economic costs for persons to comply with the proposed repeal. There are minor anticipated economic costs for persons required to comply with the amendments and new section because: 1) applicants will be required to provide the department with additional documents; and 2) parties who choose to appeal final decisions may have to pay the costs to create the record that must be filed with the reviewing court. There will be no adverse economic effect on small businesses or micro-businesses because the costs to comply with the amendments and new section are minor, ordinary costs of doing business.

TAKINGS IMPACT ASSESSMENT

The department has determined that this proposal affects no private real property interests and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action, and so does not constitute a taking or require a takings impact assessment under Government Code, §2007.043.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments, new section, and repeal may be submitted to David D. Duncan, General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731 or by email to rules@txdmv.gov. The deadline for receipt of comments is 5:00 p.m. on May 8, 2017.

SUBCHAPTER B. MOTOR CARRIER REGISTRATION

43 TAC §218.13, §218.17

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §1002.001, which provides the board of the Texas Department of Motor Vehicles with the authority to adopt rules that are necessary and appropriate to implement the powers and the duties of the department under the Transportation Code and other laws of this state; Government Code, §2001.004(1), which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and more specifically Transportation Code, §643.003, which authorizes the department to adopt rules to administer Transportation Code, Chapter 643; Transportation Code, §643.052(8), which authorizes the department by rule to require an application to include any information the department determines is necessary for the safe operation of a motor carrier under Chapter 218; Transportation Code, §643.061(a), which authorizes the department to adopt rules that provide for an optional temporary registration that is valid for less than one year; Transportation Code, §643.153, which requires the department to adopt rules to protect a consumer using the service of a motor carrier transporting household goods for compensation; and Government Code, §2001.177, which authorizes a state agency by rule to require a party who appeals a final decision in a contested case to pay all or a part of the cost of preparing the original or a certified copy of the record.

CROSS REFERENCE TO STATUTE

Business and Commerce Code, §506.001; Family Code, §231.302; and Transportation Code, Chapters 643 and 645, and §1003.004.

§218.13.Application for Motor Carrier Registration.

(a) Form of application. An application for motor carrier registration must be filed with the department's Motor Carrier Division and must be in the form prescribed by the director and must contain, at a minimum, the following information.

(1) USDOT number. A valid USDOT number.

(2) Business or trade name. The applicant must designate the business or trade name of the motor carrier.

(3) Owner name. If the motor carrier is a sole proprietorship, the owner must indicate the name and social security number of the owner. A partnership must indicate the partners' names, and a corporation or other entity must indicate principal officers and titles.

(4) Physical address of principal [Principal ] place of business. A motor carrier must disclose the motor carrier's principal business address. If the mailing address is different from the principal business address, the mailing address must also be disclosed.

(5) Legal agent.

(A) A Texas-domiciled motor carrier must provide the name, phone number, and address of a legal agent for service of process if the agent is different from the motor carrier.

(B) A motor carrier domiciled outside Texas must provide the name, phone number, and Texas address of the legal agent for service of process.

(C) A legal agent for service of process shall be a Texas resident, a domestic corporation, or a foreign corporation authorized to transact business in Texas with a Texas physical address, rather than a post office box, for service of process.

(6) Description of vehicles. An application must include a motor carrier equipment report identifying each commercial motor vehicle that requires registration and that the carrier proposes to operate. Each commercial motor vehicle must be identified by its motor vehicle identification number, make, model year, and type of cargo and by the unit number assigned to the commercial motor vehicle by the motor carrier. Any subsequent registration of vehicles must be made under subsection (e) of this section.

(7) Type of motor carrier operations. An applicant must state if the applicant:

(A) proposes to transport passengers, household goods, or hazardous materials; or

(B) is domiciled in a foreign country.

(8) Insurance coverage. An applicant must indicate insurance coverage as required by §218.16 of this title (relating to Insurance Requirements).

(9) Safety certification [affidavit]. Each motor carrier must complete, as part of the application, a certification [an affidavit] stating that the motor carrier knows and will conduct operations in accordance with all federal and state safety regulations.

(10) Drug-testing certification. Each motor carrier must certify, as part of the application, that the motor carrier is in compliance with the drug-testing requirements of 49 C.F.R. Part 382. If the motor carrier belongs to a consortium, as defined by 49 C.F.R. Part 382, the applicant must provide the names of the persons operating the consortium.

(11) Duration of registration.

(A) An applicant must indicate the duration of the desired registration. Except as provided otherwise in this section, registration [Registration] may be for seven calendar days, [or for] 90 calendar days, one year, or two years. The duration of registration chosen by the applicant will be applied to all vehicles.

(i) Household goods carriers may not obtain seven-day [seven day] or 90-day [90 day] certificates of registration.

(ii) Motor carriers that transport passengers in a commercial motor vehicle as defined by §218.2(8)(A)(ii) of this title (relating to Definitions) may not obtain seven-day or 90-day certificates of registration, unless approved by the director.

(B) Interstate motor carriers that operate in intrastate commerce and meet the requirements under §218.14(c) of this title (relating to Expiration and Renewal of Commercial Motor Vehicles Registration) are not required to renew a certificate of registration issued under this section.

(12) Additional requirements. The following fees, documents, and information must be submitted with all applications.

(A) An application must be accompanied by an application fee of:

(i) $100 for annual and biennial registrations;

(ii) $25 for 90-day [90 day] registrations; or

(iii) $5 for seven-day [seven day] registrations.

(B) An application must be accompanied by a vehicle registration fee of:

(i) $10 for each vehicle that the motor carrier proposes to operate under a seven-day [seven day], 90-day [90 day], or annual registration; or

(ii) $20 for each vehicle that the motor carrier proposes to operate under a biennial registration.

(C) An application must be accompanied by proof of insurance or financial responsibility and insurance filing fee as required by §218.16.

(D) An application must include the applicants business phone number, email address, and any cell phone number. [An application for registration by a household goods carrier must include a tariff that sets out the maximum charges for transportation of household goods between two or more municipalities, or a copy of the tariff governing interstate transportation services on a highway between two or more municipalities.]

(E) An application must include the completed New Applicant Questionnaire.

(F) An application submitted by an individual must include the number from one of the following forms of identification:

(i) an unexpired drivers license issued by a state or territory of the United States. If the drivers license was issued by the Department of Public Safety, the application must also include the audit number listed on the drivers license;

(ii) an unexpired identification certificate issued by a state or territory of the United States; or

(iii) an unexpired concealed handgun license or license to carry a handgun issued by the Department of Public Safety under Government Code, Chapter 411, Subchapter H.

(G) An application submitted by an individual or entity with an assumed name must be accompanied by supporting documents regarding the assumed name, such as an assumed name filing in the county of proposed operation.

(H) An application submitted by an entity, such as a corporation, general partnership, limited liability company, limited liability corporation, limited partnership, or partnership, must include the entity's Texas Comptroller's Taxpayer Number or the entity's Federal Employer Identification Number.

(I) An application must be accompanied by any other information required by law.

(13) Additional requirements for household goods carriers. The following information, documents, and certification must be submitted with all applications by household goods carriers:

(A) A copy of the tariff that sets out the maximum charges for transportation of household goods between two or more municipalities, or a copy of the tariff governing interstate transportation services on a highway between two or more municipalities. If an applicant is governed by a tariff that its association has already filed with the department under §218.65 of this title (relating to Tariff Registration), the applicant complies with the requirement in this subparagraph by checking the applicable box on the application to identify the association's tariff.

(B) If the motor vehicle is not titled in the name of the household goods carrier, the following lease information and documentation, notwithstanding §218.18(a) of this title (relating to Short-term Lease and Substitute Vehicles):

(i) a copy of a valid lease agreement for each motor vehicle that the household goods carrier will operate; and

(ii) the name of the lessor and their USDOT number for each motor vehicle leased to the household goods carrier under a short-term lease.

(C) A certification that the household goods carrier has procedures that comply with Code of Criminal Procedure, Article 62.063(b)(3), which prohibits certain people who are required to register as a sex offender from providing moving services in the residence of another person without supervision.

(14) Additional requirements for passenger carriers. The following information and documents must be submitted with all applications for motor carriers that transport passengers in a commercial motor vehicle as defined by §218.2(8)(A)(ii) of this title:

(A) If the commercial motor vehicle is titled in the name of the motor carrier, a copy of the International Registration Plan registration receipt or a copy of the front and back of the title for each commercial motor vehicle; or

(B) If the commercial motor vehicle is not titled in the name of the motor carrier, the following lease information and documentation, notwithstanding §218.18(a) of this title:

(i) A copy of a valid lease agreement for each commercial motor vehicle; and

(ii) The name of the lessor and their USDOT number for each commercial motor vehicles leased to the motor carrier under a short-term lease.

(b) Conditional acceptance of application. If an application has been conditionally accepted by the director pursuant to Transportation Code, §643.055, the applicant may not operate the following until the department has issued a certificate under Transportation Code, §643.054:

(1) a commercial motor vehicle or any other motor vehicle to transport household goods for compensation, or

(2) a commercial motor vehicle to transport persons or cargo.

(c) Approved application. An applicant meeting the requirements of this section and whose registration is approved will be issued the following documents:

(1) Certificate of registration. The department will issue a certificate of registration. The certificate of registration will contain the name and address of the motor carrier and a single registration number, regardless of the number of vehicles requiring registration that the carrier operates.

(2) Insurance cab card. The department will issue an insurance cab card listing all vehicles to be operated under the carrier's certificate of registration. The insurance cab card shall be continuously maintained at the registrant's principal place of business. The insurance cab card will be valid for the same period as the motor carrier's certificate of registration and will contain information regarding each vehicle registered by the motor carrier.

(A) A current copy of the page of the insurance cab card on which the vehicle is shown shall be maintained in each vehicle listed, unless the motor carrier chooses to maintain a legible and accurate image of the insurance cab card on a wireless communication device in the vehicle or chooses to display such information on a wireless communication device by accessing the department's online system from the vehicle. The appropriate information concerning that vehicle shall be highlighted if the motor carrier chooses to maintain a hard copy of the insurance cab card or chooses to display an image of the insurance cab card on a wireless communication device in the vehicle. The insurance cab card or the display of such information on a wireless communications device will serve as proof of insurance as long as the motor carrier has continuous insurance or financial responsibility on file with the department.

(B) On demand by a department investigator or any other authorized government personnel, the driver shall present the highlighted page of the insurance cab card that is maintained in the vehicle or that is displayed on a wireless communication device in the vehicle. If the motor carrier chooses to display the information on a wireless communication device by accessing the department's online system, the driver must locate the vehicle in the department's online system upon request by the department-certified inspector or other authorized government personnel.

(C) The motor carrier shall notify the department in writing if it discontinues use of a registered commercial motor vehicle before the expiration of its insurance cab card.

(D) Any erasure or alteration of an insurance cab card that the department printed out for the motor carrier renders it void.

(E) If an insurance cab card is lost, stolen, destroyed, or mutilated; if it becomes illegible; or if it otherwise needs to be replaced, the department will print out a new insurance cab card at the request of the motor carrier. Motor carriers are authorized to print out a copy of a new insurance cab card using the department's online system.

(F) The department is not responsible for a motor carrier's inability to access the insurance information using the department's online system.

(G) The display of an image of the insurance cab card or the display of insurance information from the department's online system via a wireless communication device by the motor carrier does not constitute effective consent for a law enforcement officer, the department investigator, or any other person to access any other content of the wireless communication device.

(d) Additional and replacement vehicles. A motor carrier required to obtain a certificate of registration under this section shall not operate additional vehicles unless the carrier identifies the vehicles on a form prescribed by the director and pays applicable fees as described in this subsection.

(1) Additional vehicles. To add a vehicle, a motor carrier must pay a fee of $10 for each additional vehicle that the motor carrier proposes to operate under a seven-day, 90-day [seven day, 90 day], or annual registration. To add a vehicle during the first year of a biennial registration, a motor carrier must pay a fee of $20 for each vehicle. To add a vehicle during the second year of a biennial registration, a motor carrier must pay a fee of $10 for each vehicle.

(2) Replacement vehicles. No fee is required for a vehicle that is replacing a vehicle for which the fee was previously paid. Before the replacement vehicle is put into operation, the motor carrier shall notify the department, identify the vehicle being taken out of service, and identify the replacement vehicle on a form prescribed by the department. A motor carrier registered under seven-day [seven day] registration may not replace vehicles.

(e) Supplement to original application. A motor carrier required to register under this section shall submit a supplemental application under the following circumstances.

(1) Change of cargo. A registered motor carrier may not begin transporting household goods or hazardous materials unless the carrier submits a supplemental application to the department and shows the department evidence of insurance or financial responsibility in the amounts specified by §218.16.

(2) Change of name. A motor carrier that changes its name shall file a supplemental application for registration no later than the effective date of the change. The motor carrier shall include evidence of insurance or financial responsibility in the new name and in the amounts specified by §218.16. A motor carrier that is a corporation must have its name change approved by the Texas Secretary of State before filing a supplemental application. A motor carrier incorporated outside the state of Texas must complete the name change under the law of its state of incorporation before filing a supplemental application.

(3) Change of address or legal agent for service of process. A motor carrier shall file a supplemental application for any change of address or any change of its legal agent for service of process no later than the effective date of the change. The address most recently filed will be presumed conclusively to be the current address.

(4) Change in principal officers and titles. A motor carrier that is a corporation shall file a supplemental application for any change in the principal officers and titles no later than the effective date of the change.

(5) Conversion of corporate structure. A motor carrier that has successfully completed a corporate conversion involving a change in the name of the corporation shall file a supplemental application for registration and evidence of insurance or financial responsibility reflecting the new company name. The conversion must be approved by the Office of the Secretary of State before the supplemental application is filed.

(6) Change in drug-testing consortium status. A motor carrier that changes consortium status shall file a supplemental application that includes the names of the persons operating the consortium.

(7) Retaining a revoked or suspended certificate of registration number. A motor carrier may retain a prior certificate of registration number by:

(A) filing a supplemental application to re-register instead of filing an original application; and

(B) providing adequate evidence that the carrier has satisfactorily resolved the facts that gave rise to the suspension or revocation.

(f) Change of ownership. A motor carrier must file an original application for registration when there is a corporate merger or a change in the ownership of a sole proprietorship or of a partnership.

(g) Alternative vehicle registration for household goods agents. To avoid multiple registrations of a commercial motor vehicle, a household goods agent's vehicles may be registered under the motor carrier's certificate of registration under this subsection.

(1) The carrier must notify the department on a form approved by the director of its intent to register its agent's vehicles under this subsection.

(2) When a carrier registers vehicles under this subsection, the carrier's certificate will include all vehicles registered under its agent's certificates of registration. The carrier must register under its certificate of registration all vehicles operated on its behalf that do not appear on its agent's certificate of registration.

(3) The department may send the carrier a copy of any notification sent to the agent concerning circumstances that could lead to denial, suspension, or revocation of the agent's certificate.

(h) Substitute vehicles leased from leasing businesses. A registered motor carrier is not required to comply with the provisions of subsection (e) of this section for a substitute vehicle leased from a business registered under §218.18 of this title (relating to Short-term Lease and Substitute Vehicles). A motor carrier is not required to carry proof of registration as described in subsection (d) of this section if a copy of the lease agreement for the originally leased vehicle is carried in the cab of the temporary replacement vehicle.

(i) Once the motor carrier obtains a certificate of registration, the motor carrier must review its principal business address, mailing address, and email address in the department's online system every six months and shall update such information if it is no longer correct.

§218.17.Unified Carrier Registration System.

(a) The State of Texas, through the department, shall participate in the federal motor carrier registration program under the Unified Carrier Registration System plan and agreement.

(b) An interstate motor carrier operating in Texas, as well as a broker, freight forwarder, motor private carrier of property, and leasing company, must register and comply with the provisions of the Unified Carrier Registration System as required by 49 U.S.C. §14504a and the UCR plan and agreement.

(c) The department adopts by reference the July 14, 2016 [May 20, 2010], version of the Unified Carrier Registration Agreement. A copy of the agreement is available for review in the Motor Carrier Division, Texas Department of Motor Vehicles.

(d) An application for UCR must be filed online as prescribed by the department, or an application must be filed with the department on a form prescribed by the department.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 27, 2017.

TRD-201701304

David D. Duncan

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: May 7, 2017

For further information, please call: (512) 465-5665


SUBCHAPTER E. CONSUMER PROTECTION

43 TAC §§218.56, 218.57, 218.65

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §1002.001, which provides the board of the Texas Department of Motor Vehicles with the authority to adopt rules that are necessary and appropriate to implement the powers and the duties of the department under the Transportation Code and other laws of this state; Government Code, §2001.004(1), which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and more specifically Transportation Code, §643.003, which authorizes the department to adopt rules to administer Transportation Code, Chapter 643; Transportation Code, §643.052(8), which authorizes the department by rule to require an application to include any information the department determines is necessary for the safe operation of a motor carrier under Chapter 218; Transportation Code, §643.061(a), which authorizes the department to adopt rules that provide for an optional temporary registration that is valid for less than one year; Transportation Code, §643.153, which requires the department to adopt rules to protect a consumer using the service of a motor carrier transporting household goods for compensation; and Government Code, §2001.177, which authorizes a state agency by rule to require a party who appeals a final decision in a contested case to pay all or a part of the cost of preparing the original or a certified copy of the record.

CROSS REFERENCE TO STATUTE

Business and Commerce Code, §506.001; Family Code, §231.302; and Transportation Code, Chapters 643 and 645, and §1003.004.

§218.56.Proposals and Estimates for Moving Services.

(a) Written proposals. Prior to loading, a household goods carrier shall provide a written proposal, such as a bid or quote, to the shipper. A proposal shall state the maximum amount the shipper could be required to pay for the listed transportation and listed related services. This section does not apply if a pre-existing transportation contract sets out the maximum amount the shipper could be required to pay for the transportation services. Pre-existing transportation contracts include, but are not limited to, corporate contracts for the relocation of multiple employees.

(1) A proposal must contain the name and registration number of the household goods carrier as they appear on the motor carrier certificate of registration. If a proposal is prepared by the household goods carrier's agent, it shall include the name of the agent as listed on the carrier's agent filing with the department. A proposal shall also include the street address of the household goods carrier or its agent.

(2) A proposal must clearly and conspicuously state whether it is a binding or not-to-exceed proposal.

(3) A proposal must completely describe the shipment and all services to be provided. A proposal must state, "This proposal is for listed items and services only. Additional items and services may result in additional costs."

(4) A proposal must specifically state when the shipper will be required to pay the transportation charges, such as if payment must be made before unloading at the final destination. A proposal must also state what form of payment is acceptable, such as a cashier's check.

(5) A proposal must conspicuously state that a household goods carrier's liability for loss or damage to cargo is limited to $.60 per pound per article unless the household goods carrier and shipper agree, in writing, to a higher limit of carrier liability.

(b) Hourly rates. If a proposal is based on an hourly rate, then it is not required to provide the number of hours necessary to perform the transportation and related services. However, if the number of hours is not included in a proposal, then the carrier must secure a written acknowledgment from the shipper indicating the proposal is complete without the number of hours. Also, the proposal shall state the maximum amount the shipper could be required to pay for the listed transportation and listed related services.

(c) Proposal as addendum. If a proposal is accepted by the shipper and the carrier transports the shipment, then the proposal is considered an addendum to the moving services contract.

(d) Additional items and services. If the household goods carrier determines additional items are to be transported and/or additional services are required to load, transport, or deliver the shipment, then before the carrier transports the additional items or performs the additional services the carrier and shipper must agree, in writing, to:

(1) allow the original proposal to remain in effect;

(2) amend the original proposal or moving services contract; or

(3) substitute a new proposal for the original.

(e) Amendments and storage.

(1) An amendment to an original proposal or moving services contract, as allowed in subsection (d) of this section, must:

(A) be signed and dated by the household goods carrier and shipper; and

(B) clearly and specifically state the amended maximum price for the transportation of the household goods.

(2) If the household goods carrier fails to amend or substitute an original proposal as required by this subsection and subsection (d) of this section, only the charges stated on the original proposal for moving services may be assessed on the moving services contract. The carrier shall not attempt to amend or substitute the proposal to add items or services after the items or services have been provided or performed.

(3) If through no fault of the carrier, the shipment cannot be delivered during the agreed delivery period, then the household goods carrier may place the shipment in storage and assess fees relating to storage according to the terms in §218.58 of this title (relating to Moving Services Contract - Options for Carrier Limitation of Liability), without a written agreement with the shipper to amend or substitute the original proposal.

(f) Combination document. A proposal required by subsection (a) of this section may be combined with other shipping documents, such as the moving services contract, into a single document. If a proposal is combined with other shipping documents, the purpose of each signature line on the combination document must be clearly indicated. Each signature is independent and shall not be construed as an agreement to all portions and terms of the combination document.

(g) Telephone estimates. A household goods carrier may provide an estimate for the transportation services by telephone. If the household goods carrier provides the estimate by telephone, then the carrier must also furnish a written proposal for the transportation services to the shipper prior to loading the shipment.

(h) Written document. To the extent this section requires a document or communication to be in writing, the document or communication may be in a printed or electronic format.

(i) Signatures. The signatures of the shipper and household goods carrier, as required by this section, may be transmitted by facsimile or other electronic means.

§218.57.Moving Services Contract.

(a) Requirements. A household goods carrier must give a copy of the moving services contract to the shipper prior to the loading of the shipment. This copy must include:

(1) the name and motor carrier registration number of the household goods carrier as they appear on the motor carrier certificate of registration, and the address and telephone number of the household goods carrier or the household goods agent that prepared the moving services contract;

(2) the date the shipment is loaded and a description of the shipment as household goods;

(3) the name and address of the shipper;

(4) the addresses of the:

(A) origin;

(B) destination, if known; and

(C) any stops in transit, if known;

(5) the moving services to be performed;

(6) the conspicuous statement, "A household goods carrier's liability for loss or damage to any shipment is $.60 per pound per article, unless the carrier and shipper agree, in writing, to a greater level of liability.";

(7) a conspicuous explanation of any agreement for increased carrier liability limit, the amount of increased carrier liability, the cost of the increased limit, any deductible above the carrier's $.60 per pound per article liability, and the statement, "This is not insurance.";

(8) a clear notice of the amount of any insurance for property that is transported or stored, the amount of insurance premiums, and the insurance policy number, if insurance for the shipment was purchased from or through the household goods carrier;

(9) the conspicuous statement, "This is a contract for moving services and is subject to the terms and conditions on the front and back of this document and any addendum.";

(10) a description of whether the proposal is a binding or not-to-exceed proposal, and the maximum price the shipper could be required to pay for the services listed;

(11) a statement authorizing performance of the listed services, signed and dated by the household goods carrier and the shipper; and

(12) a statement signed and dated by the shipper authorizing delivery of household goods at a destination where the shipper is not present if the shipper intends for the household goods carrier to deliver to a site where the shipper will not be present.

(b) Delivery. A household goods carrier must give a completed copy of the moving services contract to the shipper upon delivery of the shipment. The household goods carrier must release the household goods to the shipper at destination if the shipper pays the maximum price listed on the moving services contract. Except as provided by subsection (c) of this section, the moving services contract shall be signed and dated by the household goods carrier and the shipper confirming the shipment has been delivered. This signature only confirms delivery of the shipment. Except as provided in subsection (e) of this section, this copy must include the information listed in subsection (a) of this section and:

(1) the total charges for the shipment and the specific nature of each charge, including the method used to calculate the minimum and total charges if the shipment was not transported based on a binding proposal;

(2) an explanation of all additional moving services provided in accordance with §218.56(d) of this title (relating to Proposals and Estimates for Moving Services); and

(3) the addresses of the origin, destination, and any stops in transit if not previously provided on the moving services contract at the origin.

(c) Delivery to a destination where the shipper is not present. If a shipper authorizes the household goods carrier to deliver household goods to a destination where the shipper is not present, as allowed in subsection (a)(12) of this section, the moving services contract need not be signed and dated by the shipper at the time of delivery.

(d) Pre-existing transportation contracts. A household goods carrier is not required to comply with subsection (b)(1) and (2) of this section if a pre-existing transportation contract sets out the maximum amount the shipper could be required to pay for the transportation services. Pre-existing transportation contracts include, but are not limited to, corporate contracts for the relocation of multiple employees.

(e) Copies. To the extent this section requires a copy of a document or a written document, the document may be in a printed or electronic format.

(f) [(e)] Signatures. The signatures of the shipper and the household goods carrier, as required by [subsections (a)(11) and (b) of] this section, may be transmitted by facsimile or other electronic means. These signatures must be separate from any signatures required by the household goods carrier such as the acknowledgment of the statement of value of the shipment.

§218.65.Tariff Registration.

(a) Submission. In accordance with Transportation Code, §643.153, a household goods carrier and/or its household goods agent shall file a tariff with the department. [The tariff shall establish maximum rates and charges for transportation services when a highway between two or more incorporated cities, towns or villages is traversed.] A household goods carrier who is not a member of an approved association under §218.64 of this title (relating to Rates) shall file a tariff individually. In lieu of filing individually, a household goods carrier or its household goods agent, that is a member of an approved association in accordance with §218.64, may designate a collective association as its ratemaking association. The association may file a tariff, as required by this subsection, for member carriers.

(1) Contents. The tariff:

(A) shall set out all rates, charges, rules, regulations, or other provisions, in clear and concise terms, used to determine total transportation charges;

(B) may provide for the offering, selling, or procuring of insurance as provided in §218.54 of this title (relating to Selling Insurance to Shippers);

(C) may provide for the base transportation charge to include assumption by the household goods carrier for the full value of the shipment in the event a policy or other appropriate evidence of the insurance purchased by the shipper from the household goods carrier is not issued to the shipper at the time of purchase;

(D) shall describe the procedure for determining charges that are below the maximum rate for each service performed; and

(E) shall reference a specific mileage guide or source, if information on rates and charges based on mileage is included in the tariff (The referenced mileage guide shall be filed with the department as an addendum to the tariff. If the household goods carrier utilizes a computer database as a mileage guide, the household goods carrier shall allow department personnel free access to the system when conducting an inquiry regarding a specific movement performed by the household goods carrier).

(2) Interstate tariff. In accordance with Transportation Code, §643.153, a household goods carrier may satisfy the requirements of this subsection by filing a copy of its tariff governing interstate household goods transportation services.

(3) Transmittal letter. A transmittal letter shall accompany a tariff being filed. The transmittal letter shall provide:

(A) the name of the household goods carrier;

(B) the Texas mailing address and street address of the household goods carrier's principal office;

(C) the household goods carrier's registration number, if any;

(D) the name and title of the household goods carrier's representative authorizing the tariff filing; and

(E) whether the tariff is being filed on behalf of a member carrier.

(4) Format. Tariffs shall be filed:

(A) on 8 1/2" x 11" paper;

(B) with a cover sheet showing:

(i) the name of the issuing household goods carrier or collective ratemaking association;

(ii) the Texas mailing and street address;

(iii) the issuance date of the tariff;

(iv) the effective date of the tariff; and

(v) the tariff number; and

(C) separated into the following sections:

(i) general rules;

(ii) accessorial services; and

(iii) rates.

(5) Item numbers. Individual items shall be titled and designated by item number.

(6) Amendments. Any amendment to a tariff shall be filed with the department not less than 10 days prior to the effective date of the amendment. The household goods carrier or collective ratemaking association filing on behalf of its member may either file an amended tariff in total or an amendment referencing the specific sections and items which are being amended. The amendment format shall be the same as required by paragraph (4) of this subsection. A transmittal letter providing the same information as required by paragraph (3) of this subsection shall accompany the amendment filing.

(7) Rejection. The department will reject a tariff or amendment filing if it is determined the tariff:

(A) fails to meet the requirements of this section; or

(B) fails to fully disclose, in clear and concise terms, all rates, charges, and rules.

(8) Electronic filings. A household goods carrier may file an electronic copy of its tariff provided that the document is consistent with the provision of this subsection and is formatted in Microsoft Word or other format approved by the director.

(b) Operations. The department will accept a tariff which is in substantial compliance with this section if the tariff was submitted prior to November 1, 1995.

(c) Access. In accordance with Transportation Code, §643.153, tariffs filed in accordance with this section will be made available for public inspection at the TxDMV Enforcement Division or by calling the department's toll-free consumer helpline as listed on the department's website.

(d) Conflicts. All provisions of household goods carriers' tariffs are superseded to the extent they may conflict with the provisions of this chapter.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 27, 2017.

TRD-201701305

David D. Duncan

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: May 7, 2017

For further information, please call: (512) 465-5665


SUBCHAPTER F. ENFORCEMENT

43 TAC §218.73, §218.75

STATUTORY AUTHORITY

The amendments and new section are proposed under Transportation Code, §1002.001, which provides the board of the Texas Department of Motor Vehicles with the authority to adopt rules that are necessary and appropriate to implement the powers and the duties of the department under the Transportation Code and other laws of this state; Government Code, §2001.004(1), which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and more specifically Transportation Code, §643.003, which authorizes the department to adopt rules to administer Transportation Code, Chapter 643; Transportation Code, §643.052(8), which authorizes the department by rule to require an application to include any information the department determines is necessary for the safe operation of a motor carrier under Chapter 218; Transportation Code, §643.061(a), which authorizes the department to adopt rules that provide for an optional temporary registration that is valid for less than one year; Transportation Code, §643.153, which requires the department to adopt rules to protect a consumer using the service of a motor carrier transporting household goods for compensation; and Government Code, §2001.177, which authorizes a state agency by rule to require a party who appeals a final decision in a contested case to pay all or a part of the cost of preparing the original or a certified copy of the record.

CROSS REFERENCE TO STATUTE

Business and Commerce Code, §506.001; Family Code, §231.302; and Transportation Code, Chapters 643 and 645, and §1003.004.

§218.73.Administrative Proceedings.

(a) If the department decides to take an enforcement action under §218.71 of this title (relating to Administrative Penalties) or §218.72 of this title (relating to Administrative Sanctions), the department shall give written notice to the motor carrier by first class mail to the carrier's address as shown in the records of the department.

(b) The notice required by subsection (a) of this section must include:

(1) a brief summary of the alleged violation;

(2) a statement of each sanction and/or penalty;

(3) the effective date of each sanction and/or penalty;

(4) a statement informing the carrier of the carrier's right to request a hearing;

(5) a statement as to the procedure for requesting a hearing, including the period during which a request must be made; and

(6) a statement that the proposed penalties and sanctions will take effect on the date specified in the letter if the motor carrier fails to request a hearing.

(c) The motor carrier must submit a written request for a hearing to the address provided in the notice not later than the 26th day after the date the notice is mailed.

(d) On receipt of the written request for a hearing the department will refer the matter to the State Office of Administrative Hearings. When the hearing is set, the department will give notice of the time and place of the hearing to the carrier.

(e) If the motor carrier does not make a written request for a hearing or enter into a settlement agreement [under §218.74 of this title (relating to Settlement Agreements)] before the 27th day after the date the notice is mailed, the department's decision becomes final.

(f) Except as provided by Transportation Code, Chapter 643 and this chapter, any proceeding at the State Office of Administrative Hearings is governed by Government Code, Chapter 2001 and 1 TAC Chapter 155, including the authority to informally dispose of the contested case by stipulation, agreed settlement, consent order, or default.

(g) The department and the motor carrier may informally dispose of the enforcement action by entering into a settlement agreement or agreeing to stipulations at any time before the director issues a final order. However, the motor carrier must pay any penalty in full prior to the execution of a settlement agreement.

§218.75.Cost of Preparing Agency Record.

In the event that a final decision is appealed and the department is required to transmit to the court the original or a certified copy of the record, or any part thereof, the appealing party shall pay the costs of preparation of such record, unless waived by the department in whole or in part.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 27, 2017.

TRD-201701306

David D. Duncan

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: May 7, 2017

For further information, please call: (512) 465-5665


43 TAC §218.74

STATUTORY AUTHORITY

The repeal is proposed under Transportation Code, §1002.001, which provides the board of the Texas Department of Motor Vehicles with the authority to adopt rules that are necessary and appropriate to implement the powers and the duties of the department under the Transportation Code and other laws of this state; Government Code, §2001.004(1), which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and more specifically Transportation Code, §643.003, which authorizes the department to adopt rules to administer Transportation Code, Chapter 643; Transportation Code, §643.052(8), which authorizes the department by rule to require an application to include any information the department determines is necessary for the safe operation of a motor carrier under Chapter 218; Transportation Code, §643.061(a), which authorizes the department to adopt rules that provide for an optional temporary registration that is valid for less than one year; Transportation Code, §643.153, which requires the department to adopt rules to protect a consumer using the service of a motor carrier transporting household goods for compensation; and Government Code, §2001.177, which authorizes a state agency by rule to require a party who appeals a final decision in a contested case to pay all or a part of the cost of preparing the original or a certified copy of the record.

CROSS REFERENCE TO STATUTE

Business and Commerce Code, §506.001; Family Code, §231.302; and Transportation Code, Chapters 643 and 645, and §1003.004.

§218.74.Settlement Agreements.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 27, 2017.

TRD-201701308

David D. Duncan

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: May 7, 2017

For further information, please call: (512) 465-5665


CHAPTER 219. OVERSIZE AND OVERWEIGHT VEHICLES AND LOADS

The Texas Department of Motor Vehicles (department) proposes amendments to Chapter 219, Oversize and Overweight Vehicles and Loads, Subchapter A: §219.2, Definitions; and §219.3, Surety Bonds for Vehicles Transporting Recyclable Materials or Solid Waste; and Subchapter H: Enforcement, §219.124, Administrative Proceedings. The department also proposes new Subchapter H, §219.127, Cost of Preparing Agency Record. In addition, the department proposes the repeal of Subchapter H, §219.125, Settlement Agreements.

EXPLANATION OF PROPOSED AMENDMENTS, NEW SECTION, AND REPEAL

Proposed amendments to §219.2 improve the terminology, correct errors, modify the language for consistency with other rules in Chapter 219, add definitions for undefined terms in Chapter 219, clarify that the definitions in Transportation Code, Chapters 621, 622, and 623 apply to Chapter 219, and delete definitions that are already contained in statute.

Proposed amendments to §219.3 remove unnecessary language, clarify requirements and procedures, and reorganize the language for greater clarity. For example, the amendments remove the form numbers because it is not necessary to reference the form numbers in the rule. Also, the form numbers could change in the future.

Proposed amendments to §219.124 include language from §219.125, which is proposed for repeal in order to consolidate the language regarding administrative proceedings into §219.124. Amendments to §219.124 also inform the industry of the current laws and rules which govern any proceedings under Chapter 219 and Transportation Code, Chapters 621, 622, and 623 at the State Office of Administrative Hearings.

New §219.127 requires the party who appeals a final decision to pay the costs of preparing the record the department is required to file with the reviewing court, unless the department grants a waiver. It is equitable to make the appellant pay the costs to prepare the record.

FISCAL NOTE

Linda M. Flores, Chief Financial Officer, has determined that for each of the first five years the amendments, new section, and repeal as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the proposed amendments, new section and repeal.

Jimmy Archer, Director of the Motor Carrier Division, has determined that there will be no impact on local economies or overall employment as a result of enforcing or administering the proposed amendments, new section, and repeal.

PUBLIC BENEFIT AND COST

Mr. Archer has also determined that for each year of the first five years the amendments, new section, and repeal are in effect, the public benefit anticipated as a result of enforcing or administering the amendments and new section will be improved rules that are easier to understand. There are no anticipated economic costs for persons required to comply with the proposed amendments or the repeal. However, there may be minor costs for a party who appeals a final decision because the party may have to pay the costs to create the record that must be filed with the reviewing court, according to §219.127. There will be no adverse economic effect on small businesses or micro-businesses because the department is not required to subsidize the litigation costs of a business that chooses to appeal a final decision in an administration enforcement action. Government Code, §2001.177 authorizes a state agency by rule to require a party who appeals a final decision to pay all or part of the cost of preparing the record for the reviewing court.

TAKINGS IMPACT ASSESSMENT

The department has determined that this proposal affects no private real property interests and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action, and so does not constitute a taking or require a takings impact assessment under Government Code, §2007.043.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments, repeal, and new section may be submitted to David D. Duncan, General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731 or by email to rules@txdmv.gov. The deadline for receipt of comments is 5:00 p.m. on May 8, 2017.

SUBCHAPTER A. GENERAL PROVISIONS

43 TAC §219.2, §219.3

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §1002.001, which provides the board of the Texas Department of Motor Vehicles (board) with the authority to adopt rules that are necessary and appropriate to implement the powers and the duties of the department; and more specifically, Transportation Code, §§621.008, 622.002, and 623.002, which authorize the board to adopt rules that are necessary to implement and enforce Chapters 621, 622, and 623; and Government Code, §2001.177, which authorizes a state agency by rule to require a party who appeals a final decision in a contested case to pay all or a part of the cost of preparing the original or a certified copy of the record.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapters 621, 622, and 623.

§219.2.Definitions.

(a) The definitions contained in Transportation Code, Chapters 621, 622, and 623 apply to this chapter. In the event of a conflict with this chapter, the definitions contained in Transportation Code, Chapters 621, 622, and 623 control.

(b) [(a)] The following words and terms, when used in this chapter, will have the following meanings, unless the context clearly indicates otherwise.

(1) Annual permit--A permit that authorizes movement of an oversize and/or overweight load for one year commencing with the effective date.

(2) Applicant--Any person, firm, or corporation requesting a permit.

(3) Axle--The common axis of rotation of one or more wheels whether power-driven or freely rotating, and whether in one or more segments.

(4) Axle group--An assemblage of two or more consecutive axles, with two or more wheels per axle, spaced at least 40 inches from center of axle to center of axle, equipped with a weight-equalizing suspension system that will not allow more than a 10% weight difference between any two axles in the group.

(5) Board--The Board of the Texas Department of Motor Vehicles.

(6) Closeout--The procedure used by the department to terminate a permit, issued under Transportation Code, §623.142 or §623.192 that will not be renewed by the applicant.

(7) Complete identification number--A unique and distinguishing number assigned to equipment or a commodity for purposes of identification.

(8) Concrete pump truck--A self-propelled vehicle designed to pump the concrete product from a ready mix truck to the point of construction.

(9) Crane--Any unladen lift equipment motor vehicle designed for the sole purpose of raising, shifting, or lowering heavy weights by means of a projecting, swinging mast with an engine for power on a chassis permanently constructed or assembled for such purpose.

(10) Credit card--A credit card approved by the department [and a permit account card].

(11) Daylight--The period beginning one-half hour before sunrise and ending one-half hour after sunset.

(12) Department--The Texas Department of Motor Vehicles.

(13) Digital signature--An electronic identifier intended by the person using it to have the same force and effect as a manual signature. The digital signature shall be unique to the person using it.

(14) Director--The Executive Director of the Texas Department of Motor Vehicles or a designee not below the level of division director.

(15) District--One of the 25 geographical areas, managed by a district engineer of the Texas Department of Transportation, in which the Texas Department of Transportation conducts its primary work activities.

(16) District engineer--The chief executive officer in charge of a district of the Texas Department of Transportation.

(17) Electronic identifier--A unique identifier which is distinctive to the person using it, is independently verifiable, is under the sole control of the person using it, and is transmitted in a manner that makes it infeasible to change the data in the communication or digital signature without invalidating the digital signature.

(18) Escort vehicle--A motor vehicle used to warn traffic of the presence of an oversize and/or overweight [a permitted] vehicle.

(19) Four-axle group--Any four consecutive axles, having at least 40 inches from center of axle to center of axle, whose extreme centers are not more than 192 inches apart and are individually attached to or articulated from, or both, to the vehicle by a weight equalizing suspension system.

(20) Gauge--The transverse spacing distance between tires on an axle, expressed in feet and measured to the nearest inch, from center-of-tire to center-of-tire on an axle equipped with only two tires, or measured to the nearest inch from the center of the dual wheels on one side of the axle to the center of the dual wheels on the opposite side of the axle.

(21) Gross weight--The unladen weight of a vehicle or combination of vehicles plus the weight of the load being transported.

(22) Height pole--A device made of a non-conductive material, used to measure the height of overhead obstructions.

(23) Highway maintenance fee--A fee established by Transportation Code, §623.077, based on gross weight, and paid by the permittee when the permit is issued.

(24) Highway use factor--A mileage reduction figure used in the calculation of a permit fee for a permit issued under Transportation Code, §623.142 and §623.192.

(25) Hubometer--A mechanical device attached to an axle on a unit or a crane for recording mileage traveled.

(26) HUD number--A unique number assigned to a manufactured home by the U.S. Department of Housing and Urban Development.

(27) Indirect cost share--A prorated share of administering department activities, other than the direct cost of the activities, including the cost of providing statewide support services.

(28) Load-restricted bridge--A bridge that is restricted by the Texas Department of Transportation, under the provisions of Transportation Code, §621.102, to a weight limit less than the maximum amount allowed by Transportation Code, §621.101.

(29) Load-restricted road--A road that is restricted by the Texas Department of Transportation, under the provisions of Transportation Code, §621.102, to a weight limit less than the maximum amount allowed by Transportation Code, §621.101.

(30) Machinery plate--A license plate issued under Transportation Code, §502.146.

(31) Manufactured home--Manufactured housing, as defined in Occupations Code, Chapter 1201, and industrialized housing and buildings, as defined in Occupations Code, §1202.002, and temporary chassis systems, and returnable undercarriages used for the transportation of manufactured housing and industrialized housing and buildings, and a transportable section which is transported on a chassis system or returnable undercarriage that is constructed so that it cannot, without dismantling or destruction, be transported within legal size limits for motor vehicles.

(32) Motor carrier--A person that controls, operates, or directs the operation of one or more vehicles that transport persons or cargo over a public highway in this state, as defined in Chapter 218 of this title (relating to Motor Carriers).

(33) Motor carrier registration (MCR)--The registration issued by the department to motor carriers moving intrastate, under authority of Transportation Code, Chapter 643 as amended.

(34) Nighttime--The period beginning one-half hour after sunset and ending one-half hour before sunrise, as defined by Transportation Code, §541.401.

(35) Nondivisible load or vehicle--

(A) Any load or vehicle exceeding applicable length or weight limits which, if separated into smaller loads or vehicles, would:

(i) compromise the intended use of the vehicle, i.e., make it unable to perform the function for which it was intended;

(ii) destroy the value of the load or vehicle, i.e., make it unusable for its intended purpose; or

(iii) require more than eight workhours to dismantle using appropriate equipment. The applicant for a nondivisible load permit has the burden of proof as to the number of workhours required to dismantle the load.

(B) Emergency response vehicles, including those loaded with salt, sand, chemicals or a combination thereof, with or without a plow or blade attached in front, and being used for the purpose of spreading the material on highways that are or may become slick or icy.

(C) Casks designed for the transport of spent nuclear materials.

(D) Military vehicles transporting marked military equipment or materiel.

(36) Oil field rig-up truck--An unladen vehicle with an overweight single steering axle, equipped with a winch and set of gin poles used for lifting, erecting, and moving oil well equipment and machinery.

(37) Oil well servicing unit--An oil well clean-out unit, oil well drilling unit, or oil well swabbing unit, which is mobile equipment, either self-propelled or trailer-mounted, constructed as a machine used solely for cleaning-out, drilling, servicing, or swabbing oil wells, and consisting in general of, but not limited to, a mast, an engine for power, a draw works, and a chassis permanently constructed or assembled for this purpose.

(38) One trip registration--Temporary vehicle registration issued under Transportation Code, §502.095.

(39) Overdimension load--A vehicle, combination of vehicles, or vehicle and its load that exceeds maximum legal width, height, length, overhang, or weight as set forth by Transportation Code, Chapter 621, Subchapters B and C.

(40) Overhang--The portion of a load extending beyond the front or rear of a vehicle or combination of vehicles.

(41) Overheight--A vehicle or [An overdimension ] load that exceeds the maximum height specified in Transportation Code, §621.207.

(42) Overlength--A vehicle, combination of vehicles, or a vehicle or vehicle combination and its [An overdimension] load that exceed(s) [exceeds] the maximum length specified in Transportation Code, §§621.203, 621.204, 621.205, and 621.206.

(43) Oversize load--A vehicle, combination of vehicles, or a vehicle or vehicle combination and its load that exceed(s) maximum legal width, height, length, or overhang, as set forth by Transportation Code, Chapter 621, Subchapter C.

(44) [(43)] Overweight--A vehicle, combination of vehicles, or a vehicle or vehicle combination and its [An overdimension] load that exceed(s) [exceeds] the maximum weight specified in Transportation Code, §621.101.

(45) [(44)] Overwidth--A vehicle or [An overdimension] load that exceeds the maximum width specified in Transportation Code, §621.201.

(46) [(45)] Permit--Authority for the movement of an oversize and/or overweight vehicle, combination of vehicles, or a vehicle or vehicle combination and its [overdimension ] load, issued by the department under Transportation Code, Chapter 623.

(47) [(46)] Permit account card (PAC)--A debit card that can only be used to purchase a permit and which is issued by a financial institution that is under contract to the department and the Comptroller of Public Accounts.

(48) [(47)] Permit officer--An employee of the department who is authorized to issue an oversize/overweight permit.

(49) [(48)] Permit plate--A license plate issued under Transportation Code, §502.146, to a crane or an oil well servicing vehicle.

(50) [(49)] Permitted vehicle--A vehicle, combination of vehicles, or vehicle and its load operating under the provisions of a permit.

(51) [(50)] Permittee--Any person, firm, or corporation that is issued an oversize/overweight permit by the department.

(52) [(51)] Pipe box--A container specifically constructed to safely transport and handle oil field drill pipe and drill collars.

(53) [(52)] Portable building compatible cargo--Cargo, other than a portable building unit, that is manufactured, assembled, or distributed by a portable building unit manufacturer and is transported in combination with a portable building unit.

(54) [(53)] Portable building unit--The pre-fabricated structural and other components incorporated and delivered by the manufacturer as a complete inspected unit with a distinct serial number whether in fully assembled, partially assembled, or kit (unassembled) configuration when loaded for transport.

(55) [(54)] Principal--The person, firm, or corporation that is insured by a surety bond company.

[(55) Recyclable materials--Material that has been recovered or diverted from the solid waste stream for purposes of reuse, recycling, or reclamation, a substantial portion of which is consistently used in the manufacture of products which may otherwise be produced using raw or virgin materials. Recycled material is not solid waste unless the material is deemed to be hazardous solid waste by the Administrator of the United States Environmental Protection Agency, whereupon it shall be regulated accordingly unless it is otherwise exempted in whole or in part from regulation under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.), by Environmental Protection Agency regulation. However, recyclable material may become solid waste at such time, if any, as it is abandoned or disposed of rather than recycled, whereupon it will be solid waste with respect only to the party actually abandoning or disposing of the material.]

[(56) Shipper--Person who consigns the movement of a shipment.]

(56) [(57)] Shipper's certificate of weight--A form approved by the department in which the shipper certifies to the maximum weight of the shipment being transported.

(57) [(58)] Single axle--An assembly of two or more wheels whose centers are in one transverse vertical plane or may be included between two parallel transverse planes 40 inches apart extending across the full width of the vehicle.

(58) [(59)] Single-trip permit--A permit issued for an overdimension load for a single continuous movement over a specific route for an amount of time necessary to make the movement.

(59) [(60)] State highway--A highway or road under the jurisdiction of the Texas Department of Transportation.

(60) [(61)] State highway system--A network of roads and highways as defined by Transportation Code, §221.001.

(61) [(62)] Surety bond--An agreement issued by a surety bond company to a principal that pledges to compensate the Texas Department of Transportation for any damage that might be sustained to the highways and bridges by virtue of the operation of the equipment for which a permit was issued. A surety bond is effective the day it is issued and expires at the end of the state fiscal year, which is August 31st. For example, if you obtain a surety bond on August 30th, it will expire the next day at midnight.

(62) [(63)] Tare weight--The empty weight of any vehicle transporting an overdimension load.

(63) [(64)] Temporary vehicle registration--A 72-hour temporary vehicle registration, 144-hour temporary vehicle registration, or one-trip registration, as defined by Transportation Code, §502.094.

(64) [(65)] Three-axle group--Any three consecutive axles, having at least 40 inches from center of axle to center of axle, whose extreme centers are not more than 144 inches apart, and are individually attached to or articulated from, or both, to the vehicle by a weight equalizing suspension system.

(65) [(66)] Time permit--A permit issued for a specified period of time under §219.13 of this title (relating to Time Permits).

(66) Tire size--The inches of lateral tread width.

(67) Traffic control device--All traffic signals, signs, and markings, including their supports, used to regulate, warn, or control traffic.

(68) Trailer mounted unit--An oil well clean-out, drilling, servicing, or swabbing unit mounted on a trailer, constructed as a machine used for cleaning out, drilling, servicing, or swabbing oil wells, and consisting in general of, but not limited to, a mast, an engine for power, a draw works, and a chassis permanently constructed or assembled for this purpose.

(69) Truck--A motor vehicle designed, used, or maintained primarily for the transportation of property.

[(70) Truck-tractor--A motor vehicle designed or used primarily for drawing another vehicle:]

[(A) that is not constructed to carry a load other than a part of the weight of the vehicle and load being drawn; or]

[(B) that is engaged with a semitrailer in the transportation of automobiles or boats and that transports the automobiles or boats on part of the truck-tractor.]

(70) [(71)] Trunnion axle--Two individual axles mounted in the same transverse plane, with four tires on each axle, that are connected to a pivoting wrist pin that allows each individual axle to oscillate in a vertical plane to provide for constant and equal weight distribution on each individual axle at all times during movement.

(71) [(72)] Trunnion axle group--Two or more consecutive trunnion axles whose centers are at least 40 inches apart and which are individually attached to or articulated from, or both, to the vehicle by a weight equalizing suspension system.

(72) [(73)] Two-axle group--Any two consecutive axles whose centers are at least 40 inches but not more than 96 inches apart and are individually attached to or articulated from, or both, to the vehicle by a weight equalizing suspension system.

(73) [(74)] TxDOT--Texas Department of Transportation.

(74) [(75)] Unit--Oil well clean-out unit, oil well drilling unit, oil well servicing unit, and/or oil well swabbing unit.

(75) [(76)] Unladen lift equipment motor vehicle--A motor vehicle designed for use as lift equipment used solely to raise, shift, or lower heavy weights by means of a projecting, swinging mast with an engine for power on a chassis permanently constructed or assembled for such purpose.

(76) [(77)] USDOT Number--The United States Department of Transportation number.

(77) [(78)] Variable load suspension axles--Axles, whose controls must be located outside of and be inaccessible from the driver's compartment, that can be regulated, through the use of hydraulic and air suspension systems, mechanical systems, or a combination of these systems, for the purpose of adding or decreasing the amount of weight to be carried by each axle during the movement of the vehicle.

[(79) Vehicle--Every device in or by which any person or property is or may be transported or drawn upon a public highway, except devices used exclusively upon stationary rails or tracks.]

(78) [(80)] Vehicle identification number--A unique and distinguishing number assigned to a vehicle by the manufacturer or by the department in accordance with Transportation Code, §501.032 and §501.033.

[(81) Vehicle supervision fee--A fee required by Transportation Code, §623.078, paid by the permittee to the department, designed to recover the direct cost of providing safe transportation of a permit load exceeding 200,000 pounds gross weight over a state highway, including the cost for bridge structural analysis, monitoring the progress of the trip, and moving and replacing traffic control devices.]

(79) [(82)] Water Well Drilling Machinery--Machinery used exclusively for the purpose of drilling water wells, including machinery that is a unit or a unit mounted on a conventional vehicle or chassis.

(80) [(83)] Weight-equalizing suspension system--An arrangement of parts designed to attach two or more consecutive axles to the frame of a vehicle in a manner that will equalize the load between the axles.

(81) [(84)] Windshield sticker--Identifying insignia indicating that a [an over axle/over gross weight tolerance] permit has been issued in accordance with Subchapter C of this chapter [and Transportation Code, §623.011].

(82) [(85)] Year--A time period consisting of 12 consecutive months that commences with the effective date stated in the permit.

(83) [(86)] 72-hour temporary vehicle registration--Temporary vehicle registration issued by the department authorizing a vehicle to operate at maximum legal weight on a state highway for a period not longer than 72 consecutive hours, as prescribed by Transportation Code, §502.094.

(84) [(87)] 144-hour temporary vehicle registration--Temporary vehicle registration issued by the department authorizing a vehicle to operate at maximum legal weight on a state highway for a period not longer than 144 consecutive hours, as prescribed by Transportation Code, §502.094.

§219.3.Surety Bonds for Vehicles Transporting Recyclable Materials or Solid Waste.

(a) Surety bond required. A surety bond is required for:

(1) vehicles used exclusively to transport recyclable materials operated under the provisions of Transportation Code, §622.134; and

(2) vehicles used exclusively to transport solid waste under the provisions of Transportation Code, §623.163.

(b) Surety bonds.

(1) Surety bonds filed under this section must:

(A) be in the amount of $1,000 per vehicle [(for example, if 10 trucks are covered by the surety bond then the total amount of the surety bond would be $10,000)];

(B) indicate the total amount of coverage; and

(C) be filed on a form and in a manner prescribed by [submitted in duplicate to] the department [on Form 1575].

(2) A surety bond is effective the day it is issued and expires at the end of the state fiscal year[, which is August 31st. For example, if you obtain a surety bond on August 30th, it will expire the next day at midnight].

(3) The original bond certificate form must be carried in the cab of the bonded vehicle.

[(3) Form 1576 must be completed in duplicate and submitted to the department for certification of each vehicle bonded under Form 1575.]

[(A) The department will certify and return to the principal, one copy of Form 1575 and one copy of Form 1576.]

[(B) The original Form 1576 must be carried in the cab of the bonded vehicle.]

[(4) Form 1577 must be used to add or delete a vehicle covered by Form 1575 and must be completed in duplicate and submitted to the department for certification.]

[(A) The department will certify and return to the principal, one copy of Form 1577 when a new vehicle is added to the surety bond. When a vehicle is dropped from the surety bond the department will make the necessary revision to the principal's file.]

[(B) Form 1577 must be carried in the cab of the bonded vehicle.]

[(5) A facsimile copy of Forms 1575, 1576 or 1577 is not acceptable in lieu of the original surety bond.]

(c) Bond certification.

(1) For each vehicle, a bond certificate must:

(A) be on a form prescribed by the department; and

(B) be completed in duplicate and submitted to the department in a manner prescribed by the department for certification.

(2) The department will certify and return one copy of the bond certificate form to the principal.

(d) Bond amendment.

(1) A bond amendment form must be submitted to the department to add or delete a vehicle covered by a certified surety bond. A bond amendment must be completed in duplicate on a form and in a manner prescribed by the department.

(2) The department will certify and return to the principal one copy of the bond amendment form when a new vehicle is added to the surety bond.

(3) When a vehicle is removed from the surety bond, the department will make the necessary revision to the principal's file.

(4) The certified bond amendment form must be carried in the cab of the bonded vehicle.

(e) Acceptable bond documents. An electronic copy or facsimile copy of a surety bond form, bond certification form, or bond amendment form is not acceptable in lieu of the original surety bond.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 24, 2017.

TRD-201701299

David D. Duncan

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: May 7, 2017

For further information, please call: (512) 465-5665


SUBCHAPTER H. ENFORCEMENT

43 TAC §219.124, §219.127

STATUTORY AUTHORITY

The amendments and new section are proposed under Transportation Code, §1002.001, which provides the board of the Texas Department of Motor Vehicles (board) with the authority to adopt rules that are necessary and appropriate to implement the powers and the duties of the department; and more specifically, Transportation Code, §§621.008, 622.002, and 623.002, which authorize the board to adopt rules that are necessary to implement and enforce Chapters 621, 622, and 623; and Government Code, §2001.177, which authorizes a state agency by rule to require a party who appeals a final decision in a contested case to pay all or a part of the cost of preparing the original or a certified copy of the record.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapters 621, 622, and 623.

§219.124.Administrative Proceedings.

(a) If the department decides to take an enforcement action under §219.121 of this title (relating to Administrative Penalties) or §219.122 of this title (relating to Administrative Sanctions), the department shall give written notice to the person against whom the action is being taken by first class mail to the person's address as shown in the records of the department.

(b) The notice required by subsection (a) of this section must include:

(1) a brief summary of the alleged violation;

(2) a statement of each enforcement action being taken;

(3) the effective date of each enforcement action;

(4) a statement informing the person of the person's right to request a hearing;

(5) a statement describing the procedure for requesting a hearing, including the period during which a hearing request must be made; and

(6) a statement that the proposed penalties and sanctions will take effect on the date specified in the letter if the person fails to request a hearing.

(c) The person must submit a written request for a hearing to the address provided in the notice not later than the 26th day after the date the notice required by subsection (a) of this section is mailed.

(d) On receipt of the written request for a hearing, the department will refer the matter to the State Office of Administrative Hearings. When the hearing is set, the department will give notice of the time and place of the hearing to the person.

(e) If the person does not make a written request for a hearing or enter into a settlement agreement [under §219.125 of this title (relating to Settlement Agreements)] before the 27th day after the date that the notice is mailed, the department's decision becomes final [on that date].

(f) Except as provided by this chapter and Transportation Code, Chapters 621, 622, and 623, any proceeding at the State Office of Administrative Hearings is governed by Government Code, Chapter 2001 and 1 TAC Chapter 155, including the authority to informally dispose of the contested case by stipulation, agreed settlement, consent order, or default.

(g) The department and the person may informally dispose of the enforcement action by entering into a settlement agreement or agreeing to stipulations at any time before the director issues a final order. However, the person must pay any penalty in full prior to the execution of a settlement agreement.

§219.127.Cost of Preparing Agency Record.

In the event that a final decision is appealed and the department is required to transmit to the court the original or a certified copy of the record, or any part thereof, the appealing party shall pay the costs of preparation of such record, unless waived by the department in whole or in part.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 24, 2017.

TRD-201701300

David D. Duncan

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: May 7, 2017

For further information, please call: (512) 465-5665


43 TAC §219.125

STATUTORY AUTHORITY

The repeal is proposed under Transportation Code, §1002.001, which provides the board of the Texas Department of Motor Vehicles (board) with the authority to adopt rules that are necessary and appropriate to implement the powers and the duties of the department; and more specifically, Transportation Code, §§621.008, 622.002, and 623.002, which authorize the board to adopt rules that are necessary to implement and enforce Chapters 621, 622, and 623; and Government Code, §2001.177, which authorizes a state agency by rule to require a party who appeals a final decision in a contested case to pay all or a part of the cost of preparing the original or a certified copy of the record.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapters 621, 622, and 623.

§219.125.Settlement Agreements.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 24, 2017.

TRD-201701298

David D. Duncan

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: May 7, 2017

For further information, please call: (512) 465-5665