TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

CHAPTER 15. DRIVER LICENSE RULES

SUBCHAPTER C. EXAMINATION REQUIREMENTS

37 TAC §15.61

The Texas Department of Public Safety (the department) proposes amendments to §15.61, concerning Third Party Skills Testing. Texas Transportation Code, §521.165 authorizes the department to permit third parties to administer the skills test for a driver license on the department's behalf. The amendments update language to reflect the change in driver education program administration from Texas Education Agency (TEA) to the Texas Department of Licensing and Regulation (TDLR). The amendments also reduce the amount of time an authorized organization or instructor must have been licensed in order to participate in the Third Party Skills Testing (TPST) program and clarify that qualifying successor in interest ownership changes will not prevent program participation.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period the rule is in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the rule as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be more scheduling and location options for driver license applicants to take the skills test which will free resources in driver license field offices to perform other services, thereby decreasing customer wait times.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Janie Sawatsky, Driver License Division, Texas Department of Public Safety, P.O. Box 4087 (MSC 0300), Austin, Texas 78773; by fax to (512) 424-5233; or by email to DLDrulecomments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This amendment is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Transportation Code, §521.165, which authorizes the department to delegate skills testing to other entities.

Texas Government Code, §411.004(3) and Texas Transportation Code, §521.165 are affected by this proposal.

§15.61.Third Party Skills Testing.

(a) The following words and terms, when used in this section, shall have the following meanings, unless the context shall clearly indicate otherwise.

(1) Authorized organization (AO)--An entity that has entered into a Memorandum of Understanding (MOU) with the department to administer the driving skills test for a non-commercial driver license on the department's behalf.

(2) Examiner--An individual certified by the department to conduct a skills test.

(3) Successor in interest--Change of ownership of a business that is carried on and controlled substantially as it was before the ownership change.

(b) An organization is eligible to enter into a MOU[Memorandum of Understanding] with the department and to administer a skills test for a non-commercial driver license if it:

(1) Maintains a valid driver education school license issued by the Texas Department of Licensing and Regulation (TDLR) [Texas Education Agency];

(2) Has held the driver education school license issued by the TDLR [Texas Education Agency] for a minimum of one year [two years];

(3) Ensures completion of the appropriate [Teaches the] Impact Texas Drivers (ITD) curriculum to its driver education students; and

(4) Complies with the requirements of the MOU [Memorandum of Understanding] with the department.

(c) An individual employed by an AO [authorized organization] is eligible to become an examiner and conduct skills tests if he or she:

(1) Maintains a valid driver education instructor license issued by the TDLR [Texas Education Agency];

(2) Has held the driver education instructor license issued by the TDLR [Texas Education Agency] for at least one year [two years];

(3) Maintains a valid, unexpired Texas driver license;

(4) Has not been convicted of:

(A) Any felony;

(B) Criminally negligent homicide;

(C) Driving while intoxicated within seven years; or

(D) Driving under the influence within seven years.

(5) Does not have six or more points assigned to his or her Texas driver license;

(6) Has successfully completed the department prescribed training set out in the MOU [Memorandum of Understanding]; and

(7) Conforms to the standards of the MOU [Memorandum of Understanding] between the department and his or her employer.

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 August 25, 2017.

TRD-201703331

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER I. RELEASE OF DRIVER RECORD INFORMATION

37 TAC §15.142

The Texas Department of Public Safety (the department) proposes amendments to §15.142, concerning Agreement to Monitor Certain Records and Purchase Driver Record Information. These amendments are necessary to conform to changes made by the 85th Legislative Session, HB 1699 to Texas Transportation Code, §521.062 regarding program qualifications.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period the rule is in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the rule as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be the insurance industry monitoring more drivers to ensure increased safety on Texas roadways.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Janie Sawatsky, Driver License Division, Texas Department of Public Safety, P.O. Box 4087 (MSC 0300), Austin, Texas 78773; by fax to (512) 424-5233; or by email to DLDrulecomments@dps.texas.gov.Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This amendment is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Transportation Code, §521.062, which authorizes the department to conduct a pilot program to provide driver record monitoring services.

Texas Government Code, §411.004(3) and Texas Transportation Code, §521.062 are affected by this proposal.

§15.142.Agreement to Monitor Certain Records and Purchase Driver Record Information.

(a) The department approved Agreement Form will be used by all parties desiring to monitor certain records and/or purchase driver record information.

(1) The pilot for a driver record monitoring program will be limited to persons eligible under Texas Transportation Code, §521.062(b). [Solicitation for participation will be announced in the Texas Register, and selection criteria will be established so that agreements will be made with a maximum of three participants.]

(2) Fees for the driver record monitoring program will be set by contract based on the volume of records purchased during the period of the contract, and will be no less than $ .06 per record per month monitored to no more than $ .20 per record per month monitored.

[(b) The department will review all agreements to determine the requestor's eligibility to enter into this agreement.]

(b) [(c)] The agreement will contain [require the following information]:

(1) All names used by the requestor, including names of all sub parties and companies making up the requestor's entity.

(2) All web address internet sites (Uniform Resource Locator - URL) used by the requestor.

(3) Nature of the entity's business practices.

(4) Detailed explanation of the intended uses of the requested information.

(5) Copies of agreements used by the requestor to release driver record information to third parties.

(6) Any additional material provided to third party requestors detailing the process in which they obtain driver record information and describing their limitations as to how this information may be used.

(c) [(d)] If the department determines any of the information provided is incomplete, inaccurate, or does not meet statutory requirements the department will not enter into an agreement to release driver record information.

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 August 25, 2017.

TRD-201703332

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2017

For further information, please call: (512) 424-5848


CHAPTER 23. VEHICLE INSPECTION

SUBCHAPTER D. VEHICLE INSPECTION ITEMS, PROCEDURES, AND REQUIREMENTS

37 TAC §23.41, §23.42

The Texas Department of Public Safety (the department) proposes amendments to §23.41 and §23.42, concerning Vehicle Inspection Items, Procedures, and Requirements. The amendments reflect changes to the attached graphics necessitated by 85th Legislative Session, S.B. 1001. The bill raises the inspection exemption weight limit for trailers from 4,500 pounds to 7,500 pounds, requiring amendment to the attached graphics' inspection guidelines. The proposed amendments also include general updates and additional cleanup of language required by Transportation Code, Chapter 548.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the rules as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be consistency with recent legislative changes and with federal regulations governing vehicle safety equipment.

The department has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at https://www.txdps.state.tx.us/rsd/contact/default.aspx. Select "Vehicle Inspection". Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This amendment is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Transportation Code, §548.002, which authorizes the department to adopt rules to administer and enforce Chapter 548.

Texas Government Code, §411.004(3), and Texas Transportation Code, §548.002 are affected by this proposal.

§23.41.Passenger (Non-Commercial) Vehicle Inspection Items.

(a) All items of inspection enumerated in this section shall be required to be inspected in accordance with the Texas Transportation Code, Chapter 547, any other applicable state or federal law, and department or federal regulation as provided in the DPS Training and Operations Manual prior to the issuance of a vehicle inspection report.

(b) All items must be inspected in accordance with the attached inspection procedures. (The figure in this section reflects excerpts from the DPS Training and Operations Manual, Chapter 4.)

Figure: 37 TAC §23.41(b) (.pdf)

[Figure: 37 TAC §23.41(b)]

(c) A vehicle inspection report may not be issued for a vehicle equipped with a compressed natural gas (CNG) fuel system unless the vehicle inspector can confirm in a manner provided by subsection (d) of this section that:

(1) the CNG fuel container meets the requirements of Code of Federal Regulations, Title 49, §571.304; and

(2) the CNG fuel container has not exceeded the expiration date provided on the container's label.

(d) The requirements of subsection (c) of this section may be confirmed by any appropriate combination of the items detailed in this subsection:

(1) Observation of Container Label. The vehicle inspector may confirm the requirement of (c)(2) of this section through direct observation of the expiration date on the container;

(2) Observation of Label at Fueling Connection Receptacle. The vehicle inspector may confirm through direct observation of a label affixed to the vehicle by the original equipment manufacturer or by a certified installer or inspector of CNG systems (as defined in subsection (g) of this section) reflecting that the requirements of subsection (c)(1) or [(c)](2) of this section are satisfied; or

(3) Documentation. The vehicle owner may furnish to the vehicle inspector documentation provided by the original vehicle equipment manufacturer or by a certified installer or inspector of CNG systems (as defined in subsection (g) of this section) reflecting that either or both requirements of subsection (c)(1) and (2) of this section are satisfied.

(e) The owner or operator of a fleet vehicle may, as an alternative to the requirements of subsection (c) of this section, provide proof in the form of a written statement or report issued by the owner or operator that the vehicle is a fleet vehicle for which the fleet operator employs a certified installer or inspector of CNG systems (as defined in subsection (g) of this section).

(f) A copy of the written statement or report provided to the vehicle inspector under subsections (d)(3) or (e) of this section must be maintained in the vehicle inspection station's files for a period of one year from the date of the inspection and made available to the department on request.

(g) Certified installer or inspector of CNG systems: For purposes of this section, a certified installer or inspector of CNG systems is a person licensed by the Railroad Commission of Texas under 16 TAC §13.61.

§23.42.Commercial Vehicle Inspection Items.

(a) All items of inspection enumerated in this section must be inspected in accordance with the Federal Motor Carrier Safety Regulations, Texas Transportation Code, Chapter 547, and any other applicable state law and department regulation as provided in the DPS Training and Operations Manual prior to the issuance of a passing vehicle inspection report.

(b) All items must be inspected in accordance with the attached inspection procedures. The figure in this section reflects excerpts from the DPS Training and Operations Manual, Chapter 6.

Figure: 37 TAC §23.42(b) (.pdf)

[Figure: 37 TAC §23.42(b)]

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 August 25, 2017.

TRD-201703333

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2017

For further information, please call: (512) 424-5848


CHAPTER 36. METALS RECYCLING ENTITIES

SUBCHAPTER B. CERTIFICATE OF REGISTRATION

37 TAC §36.16

The Texas Department of Public Safety (the department) proposes amendments to §36.16, concerning Renewal of Certificate of Registration. This amendment is necessary to clarify the authority of the department to deny an application for renewal if the applicant is found to have been operating with an expired certificate of registration.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period the rule is in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the rule as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be greater clarity in the rules and improved efficiency in the administration of the Metals Recycling Program.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at https://www.dps.texas.gov/rsd/contact/default.aspx. Select "Texas Metals Program". Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This amendment is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Occupations Code, §1956.013, which authorizes the commission to adopt rules to administer Chapter 1956.

Texas Government Code, §411.004(3) and Texas Occupations Code, §1956.013, are affected by this proposal.

§36.16.Renewal of Certificate of Registration.

(a) To renew a certificate of registration, an application for renewal and the appropriate renewal fee must be submitted prior to the certificate's expiration date but not more than forty-five (45) days before the expiration date of the current certificate of registration.

(b) A certificate of registration that has been expired less than one (1) year may be renewed by submitting an application for renewal and the appropriate renewal fee pursuant to §36.17 of this title (relating to Fees).

(c) A certificate of registration that has expired for one (1) year or more may not be renewed. An application for a new certificate of registration must be submitted according to the procedures pursuant to §36.11 of this title (relating to Application for Certificate of Registration) and by paying the appropriate fees pursuant to §36.17 of this title.

(d) To renew a certificate of registration, registrants must submit proof of training pursuant to §36.34 of this title (relating to Texas Metals Program Recycler Training). The department may waive this requirement if there have been no significant updates since the previous training.

(e) Except as authorized pursuant to §36.42 of this title (relating to Extension of Registration Renewal Deadlines for Military Service Members) no extension for registration renewal is authorized.

(f) An applicant for a renewal of certificate of registration that is expired is not authorized to engage in any activity for which a registration is required prior to being issued a renewal certificate of registration by the department. Violation of this subsection may result in the denial of the renewal application.

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 August 25, 2017.

TRD-201703334

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER C. PRACTICE BY CERTIFICATE HOLDERS AND REPORTING REQUIREMENTS

37 TAC §36.31, §36.36

The Texas Department of Public Safety (the department) proposes amendments to §36.31 and §36.36, concerning Practice by Certificate Holders and Reporting Requirements. These amendments are necessary to implement the requirements of 85th Legislative Session, S.B. 208.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period the rule is in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the rule as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be greater clarity in the rules and therefore improved efficiency in the administration of the Metals Recycling Program.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at https://www.dps.texas.gov/rsd/contact/default.aspx. Select "Texas Metals Program". Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This amendment is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Occupations Code, §1956.013, which authorizes the commission to adopt rules to administer Chapter 1956.

Texas Government Code, §411.004(3) and Texas Occupations Code, §1956.013 are affected by this proposal.

§36.31.Reporting Requirements.

The statutorily required reports must include the physical [Not later than the second (2nd) working day after the date of purchase or other acquisition of regulated material for which a record is required pursuant to §1956.033 of the Act, the entity shall collect and submit to the department an electronic transaction report using the department's online reporting system. The report must contain the statutorily required documentation. In addition, the] address of the individual from whom the regulated material is purchased [must be a physical address]. This address must not be a post office box.

§36.36.Standards of Conduct.

(a) Pursuant to §1956.035 of the Act, a metal recycling entity shall cooperate fully with any investigation or inspection conducted by a peace officer, a representative of the department, or a representative of a county, municipality, or political subdivision that issues a license or permit under §1956.003(b) of the Act.

(b) Pursuant to §1956.035 of the Act, a metal recycling entity shall permit access during normal business hours to a person authorized to inspect.

(c) A metal recycling entity must not purchase, sell, or possess an explosive device, as defined by §1956.001(6-a) of the Act [any regulated material that reasonably could have been known to contain a substance as defined by Texas Penal Code, §46.01(2)].

(d) If convicted of a disqualifying offense pursuant to §36.55 of this title (relating to Disqualifying Offenses), an applicant or registrant shall notify the department within seventy-two (72) hours of the conviction. Notification shall be made in a manner prescribed by the department.

(e) Any violation of subsection (a) - (d)[, (b), or (c)] of this section by a business owner, or on-site representative will be construed as a violation by the registrant.

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 August 25, 2017.

TRD-201703336

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER E. DISCIPLINARY PROCEDURES AND ADMINISTRATIVE PROCEDURES

37 TAC §§36.52, 36.56, 36.60

The Texas Department of Public Safety (the department) proposes amendments to §§36.52, 36.56, and 36.60, concerning Disciplinary Procedures and Administrative Procedures. These amendments are necessary to implement the requirements of the 85th Legislative Session, SB 208, which expand the conduct for which the department may impose an administrative penalty against a person and require the department adopt by rule a standardized penalty schedule.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period the rules are in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the rules as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be greater efficiency in the administration of the Metals Recycling Program, specifically with respect to the administrative disciplinary process.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at https://www.dps.texas.gov/rsd/contact/default.aspx. Select "Texas Metals Program". Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, Texas Occupations Code, §1956.013, which authorizes the commission to adopt rules to administer Chapter 1956; and Texas Occupations Code, §1956.041, which requires that the commission adopt rules establishing a standardized penalty schedule for certain violations of the statute or rules.

Texas Government Code, §411.004(3), Texas Occupations Code, §1956.013; and Texas Occupations Code, §1956.041, are affected by this proposal.

§36.52.Advisory Letters, Reprimands and Suspensions of a Certificate of Registration.

(a) The department may reprimand a person who is registered under the Act or suspend a certificate of registration of a person who is registered under the Act if the person:

(1) Fails to submit the required reports to the department pursuant to §1956.036 of the Act;

(2) Willfully or knowingly submits false, inaccurate, or incomplete information to the department on the reports submitted pursuant to §1956.036 of the Act;

(3) Fails to preserve the records required pursuant to §1956.034 of the Act; [or]

(4) Fails to pay in full, within twenty (20) days of receipt of a final order, an administrative penalty assessed under §36.60 of this title (relating to Administrative Penalties), for which the department has issued a final order; or

(5) [(4)] Violates the Act or this chapter.

(b) For the first (1st) violation of subsection (a) of this section, the person may receive a written reprimand in the form of a letter notifying the person of the violation and directing the person to immediately remedy the violation.

(c) For a second (2nd) violation of subsection (a) of this section occurring within two (2) years of an earlier violation for which a final order has been issued, the person's certificate of registration may be suspended for a period not to exceed three (3) months.

(d) For a third (3rd) violation of subsection (a) of this section occurring within two (2) years of two (2) earlier violations for which final orders have been issued, the person's certificate of registration may be suspended for a period not to exceed six (6) months.

(e) Upon receipt of a notice of reprimand or suspension under this section, a person may request a hearing before the department pursuant to §36.56 of this title (relating to Informal Hearings). The failure to timely appeal the proposed action will result in the issuance of a final order.

(f) In lieu of a reprimand imposed pursuant to subsection (b) of this section, the person may receive an advisory letter.

(g) Upon issuance of a final order for any violation of this section, the department may require a person to complete training pursuant to §36.34 of this title (relating to Texas Metals Program Recycler Training).

(h) A violation under (a)(4) of this section will result in suspension of the registration until the administrative penalty is paid in full. The registration may not be renewed until all administrative penalties for which final orders have been issued are paid in full.

§36.56.Informal Hearings.

(a) A person who receives notice of the department's intention to deny an application for a certification of registration, to reprimand, suspend or revoke a certificate of registration, [to be reprimanded, or] to prohibit the registrant [be prohibited] from paying cash for a purchase of regulated material pursuant to §1956.036(e) of the Act, or to impose an administrative penalty under §36.60 of this title (relating to Administrative Penalties), may appeal the decision by requesting an informal hearing.

(b) The request for hearing must be submitted by mail, facsimile, or electronic mail, to the department in the manner provided on the department's metals recycling program website within twenty (20) calendar days after receipt of notice of the department's proposed action [denial, suspension, revocation, or reprimand]. If a written request for a hearing is not submitted within twenty (20) calendar days of the date notice was received, the right to a hearing under this section or §36.57 of this title (relating to Hearings before the State Office of Administrative Hearings) is waived.

(c) An informal hearing will be scheduled and conducted by the department's designee.

(d) Following the informal hearing, the hearing officer will issue a written statement of findings to the person at the address on file. The result may be appealed to the State Office of Administrative Hearings as provided in §36.57 of this title.

§36.60.Administrative Penalties.

(a) In addition to or in lieu of discipline imposed pursuant to §36.52 of this title (relating to Advisory Letters, Reprimands and Suspensions of a Certificate of Registration) the department may impose an administrative penalty on a person who violates this Chapter or Subchapter A-2 or Subchapter A-3 [§1956.036] of the Act, or who engages in conduct that would constitute an offense under §1956.040(c-2) or (c-4) of the Act.

(b) The figure in this section reflects the department's penalty schedule applicable to administrative penalties imposed under this section. For any violation not expressly addressed in the penalty schedule, the department may impose a penalty not to exceed $500 for the first (1st) violation. For the second (2nd) violation within the preceding one (1) year period, the penalty may not exceed $1,000. [For a first (1st) violation, the penalty may not exceed $500.]

Figure: 37 TAC §36.60(b) (.pdf)

[(c) For a second (2nd) violation, within the preceding one (1) year period, the penalty may not exceed $1,000.]

[(d) In determining the amount of the administrative penalty, the department shall consider:]

[(1) The degree of knowledge or intent;]

[(2) The amount necessary to deter a future violation;]

[(3) Efforts to correct the violation; and]

[(4) Any other matter that justice may require.]

(c) [(e)] Upon receipt of a notice of administrative penalty under this section, a person may request a hearing before the department pursuant to §36.56 of this title (relating to Informal Hearings). The failure to timely appeal the proposed action will result in the issuance of a final order.

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 August 25, 2017.

TRD-201703338

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2017

For further information, please call: (512) 424-5848