TITLE 43. TRANSPORTATION

PART 10. TEXAS DEPARTMENT OF MOTOR VEHICLES

CHAPTER 206. MANAGEMENT

SUBCHAPTER B. PUBLIC MEETINGS AND HEARINGS

43 TAC §206.22

INTRODUCTION. The Texas Department of Motor Vehicles (department) proposes amendments to Title 43 TAC §206.22 regarding contested cases. These amendments are necessary to implement Occupations Code §2301.709(d) and to respond to a petition for rulemaking.

On April 3, 2020, the department posted on its website an informal draft of the amendments for public comment. The department received and considered comments in preparing this proposal.

EXPLANATION. Amendments to §206.22 are proposed in response to William Crocker's petition for rulemaking dated February 5, 2019 regarding minimum time limits for parties to a contested case to make presentations to the board of the Texas Department of Motor Vehicles (board) when the board reviews a contested case before issuing a final order. Amendments to §206.22 are also proposed in response to informal comments in response to the informal draft of the amendments that the department posted on its website. Amendments are further proposed to implement Occupations Code §2301.709(d). Lastly, amendments add a reference in §206.22(a) and (b)(3) to the current exception in subsection (e), which authorizes the board chairman to grant a person more than three minutes to speak to the board on an agenda item. The amendments provide the parties with an adequate amount of time to make their initial presentation and rebuttal, authorize the board chairman to grant each party additional time, require an intervening party in support of another party to share in that party's time, and clarify that time spent by a party responding to any board questions is not counted against their time.

The chairman currently has the authority under §206.22(e) to grant each party more than three minutes to present their case; however, Mr. Crocker and many informal commenters who commented on the department's informal draft of Title 43 TAC §215.61 requested the department to amend §206.22 to give each party a minimum of 20 minutes to present their case to the board. The department grants each party a maximum of 20 minutes for the initial presentation, and five minutes for any rebuttal. However, the department reminds the parties that the board is not authorized to relitigate contested cases. In the Sunset Advisory Commission Staff Report with Final Results, 2018 - 2019, 86th Legislature, the Sunset Advisory Commission warned the board that the board is not authorized to relitigate contested cases. The State Office of Administrative Hearings (SOAH) proceedings provide the parties to a contested case an opportunity to make arguments and produce evidence in accordance with standard processes under the Texas Administrative Procedure Act, Government Code Chapter 2001. SOAH proceedings can last from hours to weeks, depending on the complexity of the case. The department's proposed amendments give each party an adequate amount of time to present their case to the board for most cases, while providing the chairman with the authority to grant more time for cases that warrant more time, consistent with the board's role under Government Code §2001.058(e).

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Linda M. Flores, Chief Financial Officer, has determined that for each year of the first five years the amendments will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. Daniel Avitia, Deputy Executive Director, has determined that there will be no measurable effect on local employment or the local economy as a result of the proposal.

PUBLIC BENEFIT AND COST NOTE. Mr. Avitia has also determined that, for each year of the first five years the amended section is in effect, there is an anticipated public benefit because the amendments give each party an adequate amount of time to present their case to the board for most cases, while providing the chairman with the authority to grant more time for cases that warrant more time.

Anticipated Costs To Comply With The Proposal. Mr. Avitia anticipates that there will be no costs to comply with these amendments. Parties to a contested case have an opportunity, rather than a requirement, to make an oral presentation to the board.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. As required by Government Code §2006.002, the department has determined that the proposed amendments will not have an adverse economic effect on small businesses, micro-business, and rural communities because parties to a contested case have an opportunity, rather than a requirement, to make an oral presentation to the board. Therefore, the department is not required to prepare a regulatory flexibility analysis under Government Code §2006.002.

TAKINGS IMPACT ASSESSMENT. The department has determined that no private real property interests are affected by this proposal 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, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT. The department has determined that each year of the first five years the proposed amendments are in effect, no government program would be created or eliminated. Implementation of the proposed amendments would not require the creation of new employee positions or elimination of existing employee positions. Implementation would not require an increase or decrease in future legislative appropriations to the department or an increase or decrease of fees paid to the department. The proposed amendments do not create a new regulation, or expand, limit, or repeal an existing regulation. Lastly, the proposed amendments do not affect the number of individuals subject to the rule's applicability and will not affect this state's economy.

REQUEST FOR PUBLIC COMMENT.

If you want to comment on the proposal, submit your written comments by 5:00 p.m. CDT on September 21, 2020. A request for a public hearing must be sent separately from your written comments. Send written comments or hearing requests by email to rules@txdmv.gov or by mail to Office of General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731. If a hearing is held, the department will consider written comments and public testimony presented at the hearing.

STATUTORY AUTHORITY. The department proposes amendments under Occupations Code §2301.153(a)(8), which authorizes the board to adopt rules; Occupations Code §2301.155, which authorizes the board to adopt rules as necessary or convenient to administer Occupations Code Chapter 2301 and to govern practice and procedure before the board; Occupations Code §2301.709(d), which authorizes the board to adopt rules that establish standards for reviewing a case under Occupations Code Chapter 2301, Subchapter O; Occupations Code §2302.051, which authorizes the board to adopt rules as necessary to administer Occupations Code Chapter 2302; Transportation Code §502.091, which authorizes the department to adopt and enforce rules to carry out the International Registration Plan; Transportation Code §623.002, which authorizes the board to adopt rules that are necessary to enforce Transportation Code Chapter 623; Transportation Code §643.003, which authorizes the department to adopt rules to administer Transportation Code Chapter 643; Government Code §2001.004(1), which authorizes a state agency to adopt rules of practice that state the nature and requirements of all available formal and informal procedures; and Transportation Code §1002.001, which authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department.

CROSS REFERENCE TO STATUTE. Occupations Code §§2301.001, 2301.153(a)(1) and (a)(7), and Chapter 2301, Subchapter O; Occupations Code §2302.354 and §2302.355; Transportation Code §§502.091, 623.271 -623.272, 643.251 -643.257, §1004.002; and Government Code Chapter 2001, Subchapters C and F.

§206.22.Public Access to Board Meetings.

(a) Posted agenda items. A person may speak before the board on any matter on a posted agenda by submitting a request, in a form and manner as prescribed by the department, prior to the matter being taken up by the board. A person speaking before the board on an agenda item will be allowed an opportunity to speak:

(1) prior to a vote by the board on the item; and

(2) for a maximum of three minutes, except as provided in subsections [subsection] (d)(6), (e), and (f) of this section.

(b) Open comment period.

(1) At the conclusion of the posted agenda of each regular business meeting, the board shall allow an open comment period, not to exceed one hour, to receive public comment on any other matter that is under the jurisdiction of the board.

(2) A person desiring to appear under this subsection shall complete a registration form, as provided by the department, prior to the beginning of the open comment period.

(3) Except as provided in subsections [subsection ] (d)(6) and (e) of this section, each person shall be allowed to speak for a maximum of three minutes for each presentation in the order in which the speaker is registered.

(c) Disability accommodation. Persons with disabilities, who have special communication or accommodation needs and who plan to attend a meeting, may contact the department in Austin to request auxiliary aids or services. Requests shall be made at least two days before a meeting. The department shall make every reasonable effort to accommodate these needs.

(d) Conduct and decorum. The board shall receive public input as authorized by this section, subject to the following guidelines.

(1) Questioning of those making presentations shall be reserved to board members and the department's administrative staff.

(2) Organizations, associations, or groups are encouraged to present their commonly held views, and same or similar comments, through a representative member where possible.

(3) Presentations shall remain pertinent to the issue being discussed.

(4) A person who disrupts a meeting shall leave the meeting room and the premises if ordered to do so by the chair.

(5) Time allotted to one speaker may not be reassigned to another speaker.

(6) The time allotted for presentations or comments under this section may be increased or decreased by the chair, or in the chair's absence, the vice chair, as may be appropriate to assure opportunity for the maximum number of persons to appear.

(e) Waiver. Subject to the approval of the chair, a requirement of this section may be waived in the public interest if necessary for the performance of the responsibilities of the board or the department.

(f) Contested Cases. The parties to a contested case under review by the board will be allowed an opportunity to provide oral argument to the board, subject to the following limitations and conditions.

(1) Each party shall be allowed a maximum of 20 minutes for their initial presentation.

(2) Each party shall be allowed a maximum of 5 minutes for rebuttal.

(3) Any party that is intervening in support of another party shall share that party's time.

(4) Time spent by a party responding to any board questions is not counted against their time.

(5) Time spent objecting when another party allegedly attempts to make arguments or discuss evidence that is not contained in the SOAH administrative record is not counted against the objecting party's time.

(6) The board chairman is authorized to grant each party additional time.

(7) A party must timely comply with the requirements of §215.59 of this title (relating to Request for Oral Argument) before it is authorized to provide oral argument to the board.

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 7, 2020.

TRD-202003211

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


SUBCHAPTER H. RISK-BASED MONITORING AND PREVENTING FRAUDULENT ACTIVITY

43 TAC §206.151

INTRODUCTION. The Texas Department of Motor Vehicles (department) proposes new 43 TAC §206.151, concerning an internal risk-based system of monitoring and preventing fraudulent activity related to vehicle registration and titling in order to efficiently allocate resources and personnel. The new section is necessary to implement Transportation Code §520.004(4) as added by Senate Bill 604, 86th Legislature, Regular Session (2019).

This proposal addresses risk based monitoring of department operations, including regional services centers. The department has also proposed new 43 TAC §223.101 concerning the risk based monitoring of external persons in this issue of the Texas Register.

EXPLANATION. Proposed §206.151 is necessary under Transportation Code §520.004(4), as enacted in SB 604. Transportation Code §520.004(4) requires the department, by rule, to establish a risk-based system of monitoring and preventing fraudulent activity related to vehicle registration and titling in order to efficiently allocate resources and personnel. The requirement is included within Sunset Advisory Commission's Change in Statute Recommendation 2.4, as stated in the Sunset Staff Report with Commission Decisions, 2018-2019, 86th Legislature (2019). The Sunset recommendation envisioned that the department develop criteria to determine varying risk levels, such as transaction volume and past violations, to strategically allocate resources and personnel. Further, monitoring and investigation would extend both to counties and their contractors, dealers, and the department's regional service centers.

To implement Transportation Code §520.004(4) in line with the Sunset recommendation, the department has developed internal and external risk-based monitoring systems. The internal system is overseen through department management and the Internal Audit Division. The external system is overseen through by the department's Compliance and Investigations Division. Each system rule is placed in its appropriate chapter based on its focus.

Proposed new §206.151 outlines the program generally, to allow flexibility for change over time and because detailed disclosure of the of the means and methods that the department's system could be used to evade the monitoring. The monitoring system does not add additional requirements or costs on any regulated person.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Linda M. Flores, Chief Financial Officer, has determined that for each year of the first five years the proposed new section will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. Sandra Menjivar-Suddeath, Director of the Internal Audit Division, has determined that there will be no measurable effect on local employment or the local economy as a result of the proposal.

PUBLIC BENEFIT AND COST NOTE. Ms. Menjivar-Suddeath has also determined that, for each year of the first five years the proposed new section is in effect, the public benefits include establishing a risk-based system of monitoring and preventing fraudulent activity related to vehicle registration and titling in order to efficiently allocate resources and personnel.

Ms. Menjivar-Suddeath anticipates that there will be no additional costs on regulated persons to comply with these rules, because the rules do not establish any additional requirements on regulated person.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. As required by Government Code, §2006.002, the department has determined that the proposed new section will not have an adverse economic effect on small businesses, micro-businesses, or rural communities because the proposal imposes no additional requirements, and has no financial effect, on any small businesses, micro-businesses, or rural communities. Therefore, the department is not required to prepare a regulatory flexibility analysis under Government Code §2006.002.

TAKINGS IMPACT ASSESSMENT. The department has determined that no private real property interests are affected by this proposal 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, therefore, does not constitute a taking or require a takings impact assessment under Government Code, §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT. The department has determined that each year of the first five years the proposed new section is in effect, the proposed rule:

--will not create or eliminate a government program;

--will not require the creation of new employee positions or the elimination of existing employee positions;

--will not require an increase or decrease in future legislative appropriations to the department;

--will not require an increase or decrease in fees paid to the department;

--will create new regulation §206.151 to implement Transportation Code §520.004(4);

--will not expand existing regulations;

--will not repeal existing regulations;

--will not increase or decrease the number of individuals subject to the rule's applicability; and

--will not positively or adversely affect the Texas economy.

REQUEST FOR PUBLIC COMMENT.

If you want to comment on the proposal, submit your written comments by 5:00 p.m. CST on September 21, 2020. A request for a public hearing must be sent separately from your written comments. Send written comments or hearing requests by email to rules@txdmv.gov or by mail to Office of General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731. If a hearing is held, the department will consider written comments and public testimony presented at the hearing.

STATUTORY AUTHORITY. The department proposes new section to §206.151 under Transportation Code §§520.003, 520.004, and §1002.001.

--Transportation Code §520.003 authorizes the department to adopt rules to administer Transportation Code Chapter 520.

--Transportation Code §520.004 requires the department to establish by rule a risk-based system of monitoring and preventing fraudulent activity related to vehicle registration and titling in order to efficiently allocate resources and personnel.

--Transportation Code §1002.001, authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department.

CROSS REFERENCE TO STATUTE. Transportation Code §520.004.

§206.151.Internal Risk-Based Monitoring System.

The department shall establish a risk-based system of monitoring and preventing fraudulent activity related to vehicle registration and titling in order to efficiently allocate resources and personnel, including:

(1) establishing a risk-based system of monitoring the department's regional service centers;

(2) developing criteria to determine varying risk levels for the department's internal fraud monitoring functions to strategically allocate resources and personnel;

(3) reviewing the department's methods for collecting and evaluating related information; and

(4) developing and providing training to department staff.

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 7, 2020.

TRD-202003216

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


CHAPTER 209. FINANCE

SUBCHAPTER B. PAYMENT OF FEES FOR DEPARTMENT GOODS AND SERVICES

43 TAC §209.23

INTRODUCTION. The Texas Department of Motor Vehicles (the department) proposes an amendment to Title 43 TAC §209.23, concerning payment of fees for department goods and services. The amendment is necessary to conform §209.23 to proposed amendments to Title 43 TAC §219.11, which is also proposed in this issue of the Texas Register.

EXPLANATION. The proposed amendment to §209.23 is necessary to remove unnecessary citations to statutes and to conform §209.23 to proposed amendments to Title 43 TAC §219.11, which is also proposed in this issue of the Texas Register. Amendments to §219.11(f)(1)(A) and (B) are proposed to remove two escrow account payment methods for purchasing oversize/overweight permits in order to streamline department processes to improve program efficiency.

The proposed amendment to §209.23 deletes most of the language regarding the use of escrow accounts, including use of permit account cards for payment for oversize overweight vehicle permits. The amendment removes unnecessary citations to statutes and conforms §209.23 to the proposed amendments to §219.11(f)(1)(A) and (B), which remove escrow accounts as an acceptable payment method for oversize/overweight permits.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Linda M. Flores, Chief Financial Officer, has determined that for each year of the first five years the amendment will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. Jimmy Archer, Director of the Motor Carrier Division, has determined that there will be no measurable effect on local employment or the local economy as a result of the proposal.

PUBLIC BENEFIT AND COST NOTE. Mr. Archer has also determined that, for each year of the first five years the amended section is in effect, there is an anticipated public benefit because the amendment conforms §209.23 to proposed amendments to §219.11. Mr. Archer also anticipates that regulated persons will incur no additional costs to comply with the proposed rule because the amendment conforms §209.23 to the proposed amendments in §219.11.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. As required by Government Code §2006.002, the department has determined that the proposed amendment will not have an adverse economic effect on small businesses, micro-business, and rural communities because it conforms §209.23 to the proposed amendments in §219.11 and does not add additional requirements to regulated persons. Therefore, the department is not required to prepare a regulatory flexibility analysis under Government Code §2006.002.

TAKINGS IMPACT ASSESSMENT. The department has determined that no private real property interests are affected by this proposal 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, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT. The department has determined that each year of the first five years the proposed amendment is in effect, the proposed rule:

--will not create or eliminate a government program;

--will not require the creation of new employee positions or the elimination of existing employee positions;

--will not require an increase or decrease in future legislative appropriations to the department;

--will not require an increase or decrease in fees paid to the department;

--will not create new regulations;

--will not expand existing regulations;

--will repeal existing regulations to conform with §219.11;

--will not increase or decrease the number of individuals subject to the rule's applicability; and

--will not positively or adversely affect the Texas economy.

REQUEST FOR PUBLIC COMMENT. If you want to comment on the proposal, submit your written comments by 5:00 p.m. CDT on September 21, 2020. A request for a public hearing must be sent separately from your written comments. Send written comments or hearing requests by email to rules@txdmv.gov or by mail to Office of General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731. If a hearing is held, the department will consider written comments and public testimony presented at the hearing.

STATUTORY AUTHORITY. The department proposes an amendment to §209.23 under Transportation Code §1001.009 and §1002.001.

--Transportation Code §1001.009 authorizes the Board of the Texas Department of Motor Vehicles (board) to adopt rules regarding the method of collection of a fee for any goods or services provided by the department.

--Transportation Code §1002.001 authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department under the Transportation Code.

CROSS REFERENCE TO STATUTE. Transportation Code Chapters 502, 621, 622, 623, 643, and 645.

§209.23.Methods of Payment.

(a) All fees for department goods and services and any fees required in the administration of any department program shall be paid to the department with a method of payment accepted by the department at the point of sale, which may be:

(1) a valid debit or credit card, approved by the department, and issued by a financial institution chartered by a state or the United States, or a nationally recognized credit organization;

(2) electronic funds transfer;

(3) a personal check, business check, cashier's check, or money order, payable to the Texas Department of Motor Vehicles, except that a personal or business check is not an acceptable method of payment of fees under Transportation Code, §502.094;

(4) cash in United States currency, paid in person; or

(5) by an escrow account, established with the department for the specific purpose of paying fees [required by Transportation Code, Chapters 502, 621, 622, 623, 643, or 645. Use of an escrow account includes use of a Permit Account Card (PAC) for payment of Oversize/Overweight vehicle permit fees, as authorized by §219.11(f)(1)(A) of this title (relating to General Oversize/Overweight Permit Requirements and Procedures)].

(b) Persons paying the department by credit card or Automated Clearing House (ACH) shall pay any applicable service charge per transaction.

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 7, 2020.

TRD-202003209

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


CHAPTER 215. MOTOR VEHICLE DISTRIBUTION

SUBCHAPTER B. ADJUDICATIVE PRACTICE AND PROCEDURE

43 TAC §§215.22, 215.55, 215.59 - 215.63

INTRODUCTION. The Texas Department of Motor Vehicles (department) proposes amendments to Title 43 TAC §215.22 and §215.55, and proposes new Title 43 TAC §§215.59 - 215.63, regarding contested cases. These amendments and new sections are necessary to implement Occupations Code §2301.709(d) and to respond to a petition for rulemaking.

The department also proposes amendments to §215.22 and §215.55 to conform to statute and existing rules.

On April 3, 2020, the department posted on its website an informal draft of these rules for public comment. The department received and considered comments in preparing this proposal.

EXPLANATION. Proposed amendments to §215.22(a) are necessary to conform with Government Code §2001.061, regarding ex parte communications and Occupations Code Chapter 2301. In response to an informal comment regarding §215.22(a), the department proposes the addition of the word "person," which is included in §2001.061. The department also proposes amendments to §215.22(a) to expand the scope of prohibited ex parte communications to be consistent with §2001.061. The department further proposes amendments to §215.22(a) to fix grammatical errors.

The department proposes a new §215.22(b) to implement Occupations Code §2301.709(d)(1) regarding the role of division personnel in advising the board or a person delegated power from the board under Occupations Code §2301.154. The department also proposes a conforming amendment regarding the role of division personnel in advising the hearing officer on those cases in which a hearing officer is authorized under Occupations Code Chapter 2301. New §215.22(b) is further proposed in response to a petition for rulemaking dated February 5, 2019 requesting the department to prohibit department staff from providing any recommendations to the board on contested cases. However, when the department is a party to the contested case, department staff are authorized to recommend a final decision, just as any other party is authorized to recommend a final decision.

The department further proposes to renumber the current §215.22(b) to §215.22(c) and to make a conforming amendment to new §215.22(c) because not all cases under Occupations Code Chapter 2301 have a hearing officer.

Proposed amendments to §215.55 are necessary to conform with §215.58 under which the board delegated final order authority in certain cases.

Proposed new §§215.59 - 215.63 are necessary to implement Occupations Code §2301.709(d), which requires the board to adopt rules that establish standards for reviewing a case under Occupations Code Chapter 2301, Subchapter O regarding hearing procedures. Section 2301.709(d) requires the rules to: 1) specify the role of the department's personnel in managing contested cases before the board, including advising on procedural matters; 2) specify appropriate conduct and discussion by the board regarding proposals for decisions issued by administrative law judges; 3) specify clear expectations limiting arguments and discussion on contested cases in which the board allows oral argument; 4) address ex parte communications; and 5) distinguish between using industry expertise and representing or advocating for an industry when the board is reviewing a contested case under Occupations Code Chapter 2301, Subchapter O regarding hearing procedures.

At this time, the department declines to adopt rules under Occupations Code §2301.709(d)(2) to specify the appropriate conduct and discussion by a person delegated power from the board under Occupations Code §2301.154, regarding proposals for decision issued by administrative law judges. Under 43 TAC §215.88, the board only delegated power under Occupations Code §2301.154 in cases in which there has not been a decision on the merits, so there will not be a proposal for decision issue by an administrative law judge in the delegated cases.

Proposed new §215.59 is consistent with the department's current practice, including the practice of having department staff provide a recommendation to the board when the department is a party to the contested case. In response to an informal commenter's request for 30-days' notice of the date of a board meeting to review the contested case, the department modified its informal working draft language to increase the notice to at least 30-days' notice. The proposed new §215.59 is consistent with the department's current practice of requiring a party to timely request oral argument before being granted the privilege of providing oral argument. The board has the discretion on whether to allow oral arguments under Occupations Code §2301.709(b). The department and the board chairman need to know in advance whether a party wants to provide oral argument so the department and the chairman can efficiently organize and schedule the board meeting, including the order in which certain agenda items are heard.

One informal commenter on §215.59 and §215.60 requested the opportunity for the parties to file briefs. The department proposes new §215.60 to authorize the parties to submit written presentation aids; however, the department limited the number of pages to a total of six pages: four pages for the initial presentation aid, and two pages for any rebuttal presentation aids. In the Sunset Advisory Commission Staff Report with Final Results, 2018 - 2019, 86th Legislature, the Sunset Advisory Commission warned the board that the board is not authorized to relitigate contested cases. The State Office of Administrative Hearings (SOAH) proceedings provide the parties to a contested case an opportunity to make arguments and produce evidence in accordance with standard processes under the Texas Administrative Procedure Act, Government Code Chapter 2001. SOAH proceedings can last from hours to weeks, depending on the complexity of the case. The department does not want to impose any unnecessary burdens on the board under Government Code §2001.141(e). Also, the department proposes uniform standards for the size and appearance of the presentation aids so the aids will fit into the board book that the department provides to the board, the board members can easily read the presentation aids, the parties have a clear understanding of what is allowed, and the parties can be held to the same standard to avoid an unfair advantage.

Proposed new §215.60 also requires the parties to timely provide their presentation aids to the department and all other parties. The department needs the presentation aids in advance so the department can include them in the board book that the department provides to the board members and so the department can advise the board. The other parties need the presentation aids in advance so they can provide a rebuttal presentation aid if needed and prepare for any oral argument. The department also renumbered the remaining new §§215.61 - 215.63 after adding new §215.60, which was not included in the informal working draft.

One informal commenter on the informal working draft of §215.59 and §215.60 requested a requirement for department staff to provide a recommendation upon a board member's request. The department declines to impose a requirement for department staff to provide a recommendation upon a board member's request because it would place a new burden on department staff, and the board is responsible for deciding the final order.

Some informal comments on the informal working draft of §215.59(b) stated it was acceptable for department staff to provide a recommendation to the board on cases in which the department is a party; however, one comment stated that the recommendation should be made available to the affected parties prior to the board meeting under the fundamental tenant of due process. On cases in which the department is a party to the contested case, the department's current practice is to provide the department's recommendations in the board book, which is posted on the department's website prior to each board meeting. Another informal comment on §215.59(b) stated that communications are prohibited unless allowed by rule. The department disagrees with this comment. Occupations Code §2301.709(d) does not require a board rule to give the department staff authority to communicate with the board on contested cases because Government Code §2001.061, Government Code §2001.090, and case law already provide the authority for department staff to do so. Proposed new §215.22(b) acknowledges the authority and limitations under existing law for department staff to communicate with board members regarding contested cases. Proposed new §215.62(a) complies with the requirement in Occupations Code §2301.709(d)(1) for the board's rule to specify the role of division personnel in managing contested cases before the board regarding advice on procedural matters.

Proposed new §215.61(a) reminds the parties to a contested case that they must limit their arguments and discussion to evidence that is contained in the SOAH administrative record. Proposed new §215.61(a) complies with Occupations Code §2301.709(d)(3), which requires the board to adopt rules that specify clear expectations limiting arguments and discussion to evidence in the SOAH administrative record. Proposed new §215.61(b) states each party is responsible for objecting when another party attempts to make arguments or engage in discussion regarding evidence that is not contained in the SOAH administrative record. The department received informal comments on the informal draft rule §215.60(b), requesting the department to delete the language in proposed new §215.61(b), or to say that the failure to object does not waive the violation or preclude the complaining party from raising the issue as a ground for a rehearing in a motion for rehearing of the board's final order or in a petition for judicial review of the board's final order. The department declines to amend §215.61(b) in response to the informal comments, and the department won't provide legal advice regarding the impact of a failure to object on a motion for rehearing or an appeal. Timely objections to arguments or discussion about evidence that is outside of the SOAH administrative record are necessary to allow board members to appropriately and efficiently review and decide contested cases. Timely objections give our board the opportunity to make a decision on the spot and to say on the record whether they did or didn't consider the evidence, which could avoid an unnecessary motion for rehearing or petition for judicial review. The board chairman has the authority to preside over board meetings and to make rulings on motions and points of order under Transportation Code §1001.023(b)(1).

The department also received informal comments on the informal working draft of §215.60, requesting the department to add language regarding the authority for a party to make an argument or to provide information outside of SOAH's administrative record if the party contends the case should be remanded to SOAH. The department made the requested change in proposed new §215.61(a); however, the propose change is limited to arguments requesting the board to remand the case to SOAH. Although Government Code §2001.058(e) does not expressly authorize the board to remand a contested case to SOAH, SOAH's administrative rule (Title 1 TAC §155.153(b)(13)) contemplates remands, and SOAH decides whether a remand is appropriate.

An informal commenter requested the board to amend the informal working draft of §215.60 to address a circumstance in which a party is arguing error under Government Code §2001.058(e) when the SOAH administrative law judge fails to admit certain evidence presented, while another informal commenter requested the board to add the word "admitted" before the word "record." In response to the informal comments, the department added language to proposed new §215.61(a) to require the parties to limit their arguments and discussion to evidence in the SOAH administrative record, consistent with the scope of the board's authority to take action under Government Code §2001.058(e). The addition of this language is sufficient to address the comments because §2001.058(e) establishes the boundaries on the board's authority regarding review of contested cases.

Proposed new §215.62 sets out the order of presentations to the board for review of a contested case. The department received informal comments on the informal working draft of §215.61, requesting the department to modify the language to say the party with the burden of proof shall have the opportunity to present oral argument first, and the department received comments stating the party that is adversely affected should have the opportunity to present oral argument first. The department declines to modify the proposed language that says the party who is adversely affected has the opportunity to present oral argument first. By having the adversely affected party present first, it helps to focus the board's review on issues the board is authorized to address, and it recognizes the SOAH administrative law judge's role in assessing the evidence and making a recommendation in the proposal for decision. Also, the Texas Rules of Civil Procedure do not apply to the presentation before the board.

An informal comment on the informal working draft of §215.61 requested an amendment that says only the party with the burden of proof should have the authority to make a rebuttal presentation. The department declines to make the requested change to proposed new §215.62, which gives all parties an equal opportunity to make a rebuttal presentation. In response to an informal comment requesting the addition of language to clarify that the board has the authority to decide the order if both parties lose on an issue at SOAH, the department added the requested language. The department declines to add language to give aligned parties the authority to agree on the order of presentation because the department's proposed language provides certainty on the order of presentation. The board has authority to allow presentation aids that are consistent with the SOAH administrative record and the board's authority under Government Code §2001.058(e).

Proposed new §215.63 addresses board conduct and discussion when reviewing a contested case. The department received an informal comment on the informal working draft of §215.62, requesting the department to add language to §215.62(a) that says the board will conduct its review of a contested case under Occupations Code Chapter 2301, as well as language limiting the authority for the board to vacate or modify an order issued by the administrative law judge. The department declines to add the requested language to proposed new §215.63 because the additions are unnecessary. Chapter 215 implements Occupations Code Chapter 2301, which also authorizes the board to enforce Transportation Code Chapter 503. Also, Government Code Chapter 2001 governs the board's review of a contested case. Also, the SOAH administrative law judge does not issue the final order in contested cases under Chapter 215, so it is unnecessary to add language regarding the board's authority to vacate or modify an order issued by the administrative law judge.

An informal commenter requested the department to add language to the informal working draft of §215.62(b) to say the board may question the department about any matter that is relevant to a proposal for decision, any matter that is in the administrative record, and any matter that is conducive to the issuance of a final order. The department added language to proposed new §215.63(b); however, the questions must be consistent with the scope of the board's authority to take action under Government Code §2001.058(e). In response to the comment, the department also clarified that the board has the authority to question any party on any matter that is relevant to the proposal for decision, as well as evidence contained in the SOAH administrative record. The department added language to proposed new §215.63(b) in response to an informal comment requesting the department to add language to allow board members to ask questions regarding a request to remand the contested case to SOAH.

In response to comments to add and delete language in the informal working draft of proposed new §215.62(c) regarding the requirement for the board to distinguish between using their industry expertise and representing or advocating for an industry, the department added a clause to proposed new §215.63(c) stating the board must do so consistent with the scope of the board's authority to take action under Government Code §2001.058(e). The department declines to amend proposed §215.63 to say that only members of the board and the executive director may question a person making a presentation on behalf of a party, as requested by one informal commenter. Current §206.22(d)(1) only authorizes board members and the department's administrative staff to question the people making a presentation to the board. The chairman has the authority to preside over board meetings under Transportation Code §1001.023(b)(1), including the authority to determine who has the floor to speak during a board meeting. The department wants to preserve the chairman's flexibility to preside over board meetings.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Linda M. Flores, Chief Financial Officer, has determined that for each year of the first five years the amendments and new sections will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. Daniel Avitia, Deputy Executive Director, has determined that there will be no measurable effect on local employment or the local economy as a result of the proposal.

PUBLIC BENEFIT AND COST NOTE. Mr. Avitia has also determined that, for each year of the first five years the amended and new sections are in effect, there is an anticipated public benefit because parties to a contested case will have more clarity regarding their rights, their obligations, and the board's authority regarding a contested case that is presented at a board meeting.

Anticipated Costs To Comply With The Proposal. Mr. Avitia anticipates that there will be no costs to comply with these rules. Parties to a contested case have an opportunity, rather than a requirement, to make an oral presentation to the board and to provide presentation aids to the board.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. As required by Government Code §2006.002, the department has determined that the proposed amendments and new sections will not have an adverse economic effect on small businesses, micro- business, and rural communities because parties to a contested case have an opportunity, rather than a requirement, to make an oral presentation to the board and to provide presentation aids to the board. Therefore, the department is not required to prepare a regulatory flexibility analysis under Government Cod, §2006.002.

TAKINGS IMPACT ASSESSMENT. The department has determined that no private real property interests are affected by this proposal 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, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT. The department has determined that each year of the first five years the proposed amendments and new sections are in effect, no government program would be created or eliminated. Implementation of the proposed amendments and new sections would not require the creation of new employee positions or elimination of existing employee positions. Implementation would not require an increase or decrease in future legislative appropriations to the department or an increase or decrease of fees paid to the department. The proposed amendments and new sections include a new regulation that makes each party responsible for objecting when another party attempts to make arguments or engage in discussion regarding evidence that is not contained in the SOAH administrative record. The proposed amendments and new sections do not limit or repeal an existing regulation. Lastly, the proposed amendments and new sections do not affect the number of individuals subject to the rule's applicability and will not affect this state's economy.

REQUEST FOR PUBLIC COMMENT. If you want to comment on the proposal, submit your written comments by 5:00 p.m. CDT on September 21, 2020. A request for a public hearing must be sent separately from your written comments. Send written comments or hearing requests by email to rules@txdmv.gov or by mail to Office of General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731. If a hearing is held, the department will consider written comments and public testimony presented at the hearing.

STATUTORY AUTHORITY. The department proposes amendments and new sections under Occupations Code §§2301.153(a)(8), which authorizes the board to adopt rules; Occupations Code §2301.155, which authorizes the board to adopt rules as necessary or convenient to administer Occupations Code Chapter 2301 and to govern practice and procedure before the board; Occupations Code §2301.709(d), which authorizes the board to adopt rules that establish standards for reviewing a case under Occupations Code Chapter 2301, Subchapter O; Government Code §2001.004(1), which authorizes a state agency to adopt rules of practice that state the nature and requirements of all available formal and informal procedures; and Transportation Code §1002.001, which authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department.

CROSS REFERENCE TO STATUTE. Occupations Code §§2301.001, 2301.151, 2301.152, 2301.153(a)(1), (a)(7), (a)(8), and Chapter 2301, Subchapter O; and Government Code Chapter 2001, Subchapters C and F.

§215.22.Prohibited Communications.

(a) No person, party, attorney of record, or authorized representative in any contested case shall engage in [make], directly or indirectly, any ex parte communication, in violation of Government Code, §2001.061, concerning the [merits of the] contested case with [to] the board or hearing officer assigned to render a decision or make findings of fact and conclusions of law in a contested case.

(b) Except as prohibited by Government Code, §2001.061, department staff may advise the board, the hearing officer, and a person delegated power from the board under Occupations Code, §2301.154 regarding the contested case and any procedural matters. However, staff shall not recommend a final decision to the board unless the department is a party to the contested case.

(c) [(b)] Violations of this section shall be promptly reported to the hearing officer, as applicable, and the general counsel of the department. The general counsel shall ensure that a copy or summary of the ex parte communication is included with the record of the contested case and that a copy is forwarded to all parties or their authorized representatives. The general counsel may take any other appropriate action otherwise provided by law.

§215.55.Final Decision.

(a) Except as provided by §215.58 of this title (relating to Delegation of Final Order Authority), the [The] board has final order authority in a contested case initiated by a complaint filed before January 1, 2014, under Occupations Code, §2301.204 or §§2301.601 - 2301.613.

(b) The hearings examiner has final order authority in a contested case filed on or after January 1, 2014, under Occupations Code, §2301.204 or §§2301.601 - 2301.613.

(c) Except as provided by subsections (a) and (b) of this section and §215.58 of this title, the board has final order authority in a contested case filed under Occupations Code, Chapter 2301 or under Transportation Code, Chapter 503.

(d) An order shall be deemed final and binding on all parties and all administrative remedies are deemed to be exhausted as of the effective date, unless a motion for rehearing is filed with the appropriate authority as provided by law. §215.59.Request for Oral Argument.

(a) At least 30 days prior to the date of a board meeting during which the board will review a contested case, department staff shall notify the parties regarding the opportunity to attend and provide oral argument concerning a proposal for decision before the board.

(b) If a party wants to provide oral argument at the board meeting, it must submit a written request for oral argument to the department's Office of General Counsel at least 14 days prior to the date of the board meeting at which the party's contested case will be considered.

(c) If a party timely submits a written request for oral argument, that party may present oral argument at the board meeting. If a party fails to timely submit a written request for oral argument, that party shall not present oral argument at the board meeting.

§215.60.Presentation Aids.

(a) If a party wants to provide a presentation aid to the board, it must provide the presentation aid to the department and all other parties in accordance with §215.30 of this title (Relating to Filing of Documents) and §215.49 of this title (Relating to Service of Pleadings, Petitions, Briefs, and Other Documents) at least 21 days prior to the date of the board meeting. If a party wants to provide a rebuttal presentation aid to the board, it must provide the rebuttal presentation aid to the department and all other parties in accordance with §215.30 of this title and §215.49 of this title at least 14 days prior to the date of the board meeting. If a party fails to timely provide a presentation aid to the department or any other party, the department shall not provide the presentation aid to the board and the party shall not provide the presentation aid to the board at the board meeting.

(b) For the purposes of this section, presentation aids are defined as written materials, such as a document or PowerPoint slides, which contain a party's arguments and discussion of evidence, laws, and rules regarding the contested case. Presentation aids shall be limited to evidence contained in the SOAH administrative record and consistent with the scope of the board's authority to take action under Government Code §2001.058(e). However, any party may argue that the board should remand the case to SOAH.

(c) All information in the presentation aids shall include a cite to the SOAH administrative record on all points to specifically identify where the information is located.

(d) Presentation aids shall be single-sided, double-spaced, 8.5 inches by 11 inches, and at least 12-point type. Initial presentation aids are limited to four pages, and rebuttal presentation aids are limited to two pages for a total of six pages. If a party provides the department with a presentation aid that contains more pages than the maximum allowed, the department shall not provide the presentation aid to the board and the party shall not provide the presentation aid to the board at the board meeting.

§215.61.Limiting Arguments and Discussion to Evidence in the Administrative Record.

(a) The parties to a contested case under review by the board shall limit their arguments and discussion to evidence in the SOAH administrative record, and their arguments and discussion shall be consistent with the scope of the board's authority to take action under Government Code §2001.058(e). However, any party may argue that the board should remand the case to SOAH.

(b) Each party is responsible for objecting when another party attempts to make arguments or engage in discussion regarding evidence that is not contained in the SOAH administrative record.

§215.62.Order of Presentations to the Board for Review of a Contested Case.

(a) The department's staff will present the procedural history and summary of the contested case.

(b) The party that is adversely affected has the opportunity to present its case first. However, the board chairman is authorized to determine the order of each party's presentation in the event of the following:

(1) it is not clear which party is adversely affected;

(2) it appears as though more than one party is adversely affected; or

(3) different parties are adversely affected by different portions of the contested case under review.

(c) The other party or parties then have an opportunity to respond. If there are more than one other party, each party will have an opportunity to respond in alphabetical order based on the name of the party in the pleadings in the SOAH administrative record.

(d) Each party then has an opportunity to provide a rebuttal.

(e) A party must timely comply with the requirements of §215.59 of this title (relating to Request for Oral Argument) before it is authorized to provide oral argument to the board.

§215.63.Board Conduct and Discussion When Reviewing a Contested Case.

(a) The board shall conduct its review of a contested case in compliance with Government Code Chapter 2001, including the limitations on changing a finding of fact or conclusion of law made by the administrative law judge at SOAH, and the prohibition on considering evidence outside of the SOAH administrative record.

(b) Board members may question any party or the department on any matter that is relevant to the proposal for decision or the evidence contained in the SOAH administrative record; however, any questions shall be consistent with the scope of the board's authority to take action under Government Code §2001.058(e), and the communication must comply with §215.22 of this title (Relating to Prohibited Communications). In addition, board members are authorized to ask questions regarding arguments or a request to remand the case to SOAH.

(c) Board members may use their industry expertise to help them understand the case and make effective decisions, consistent with the scope of the board's authority to take action under Government Code §2001.058(e). However, board members are not advocates for a particular industry. Board members are public servants who take an oath to preserve, protect, and defend the Constitution and laws of the United States and Texas.

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 7, 2020.

TRD-202003212

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


SUBCHAPTER J. ADMINISTRATIVE SANCTIONS

43 TAC §215.500, §215.504

INTRODUCTION. The Texas Department of Motor Vehicles (department) proposes to amend 43 TAC §215.500, concerning administrative sanctions and procedures and add new §215.504 concerning buyer and lessee refunds. The proposed amended and new sections implement Senate Bill (SB) 604, 86th Legislature, Regular Session (2019), which amended Occupations Code Chapter 2301 by adding §2301.807 which allows the board to order a licensee under Chapter 2301 to pay a refund to a buyer or lessee of a motor vehicle.

EXPLANATION. The proposed amendment to §215.500 adds §215.500(a)(5) to the existing list of administrative sanctions available to the department. The department's enforcement division will order refunds within existing enforcement procedures outlined in Chapter 215. The board could order the issuance of refunds through settlement negotiations undertaken under Chapter 215 as well as the adoption of a proposal for decision issued by an administrative law judge at the State Office of Administrative Hearings. Proposed new §215.500(a)(5) is necessary to implement SB 604 and to clarify that refunds will be ordered using the same procedures as existing sanctions under the rules.

Proposed new §215.504(a) permits the board to order a person to issue a refund if, after a proceeding under Chapter 215, it determines the person violated or has violated Occupations Code Chapter 2301 or department rules. Proposed new §215.504 (a) is necessary to implement SB 604.

Proposed new §215.504(b) defines "refund" as the return of any percentage of funds paid, or contracted to be paid, to a person, whether those funds are documented as a separate line item or the overall amount paid by a customer. Proposed new §215.504(b) explains that a refund may include overpayments, fees paid for services not rendered, and payments made for products not delivered. A refund does not include any consideration of damages or harm over the amount paid by the customer. Occupations Code §2301.807 did not extend the department's sanction authority to order damages or restitution. Proposed new §215.504(b) is necessary to explain the meaning of refund in the subsection and clarify that the refund is not a mechanism for restitution or to make the consumer whole; such as, the dealer licensee reimbursing the buyer or lessee for the cost of third-party services in a situation where the buyer or lessee must engage a third-party to complete services not rendered. A refund is a tool that may be used by the department's enforcement division to order a person who has violated Occupations Code Chapter 2301 to refund the customer by giving back or returning money paid or contracted to be paid, if the customer has entered into a financing agreement, because the consumer did not receive a service or item. The refund is limited to funds paid or contracted to be paid to the dealer licensee.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Linda M. Flores, Chief Financial Officer, has determined that for each year of the first five years the amended and new sections will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. Corrie Thompson, Director of the Enforcement Division, has determined that there will be no measurable effect on local employment or the local economy as a result of the proposal.

PUBLIC BENEFIT AND COST NOTE. Ms. Thompson has also determined that, for each year of the first five years the amended and new sections are in effect, there are public benefits anticipated from the ability of the board to order refunds.

Anticipated Public Benefits. The public benefits anticipated as a result of the proposal include expanding the administrative tools that the board has to sanction dealer licensees that violate the Occupations Code and department rules and providing buyers and lessees a means of receiving a refund of money paid to dealer licensees for overpayments, fees paid for services not rendered, and payments made for products not delivered.

Anticipated Costs To Comply With The Proposal. Ms. Thompson anticipates that there will be no costs to comply with these rules. The proposed rules do not create any compliance requirement of cost of compliance on a regulated person. The proposed rules implement a potential statutory sanction provision that the department may order against a person that violates Occupations Code Chapter 2301 or a rule adopted under the chapter.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. As required by the Government Code, §2006.002, the department has determined that the proposed new section will not have an adverse economic effect on small businesses, micro-businesses, or rural communities as a result of implementing this rule because it will not create additional requirements or costs on regulated persons. Therefore, the department is not required to prepare a regulatory flexibility analysis under Government Code §2006.002.

TAKINGS IMPACT ASSESSMENT. The department has determined that no private real property interests are affected by this proposal 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, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT. The department has determined that during the first five years the proposed amended and new sections are in effect, no government program would be created or eliminated. Implementation of the proposed amended and new sections would not require the creation of new employee positions or elimination of existing employee positions. Implementation would not require an increase or decrease in future legislative appropriations to the department or an increase or decrease of fees paid to the department. The proposed amended and new sections do not create a new regulation, or expand, or repeal an existing regulation. Lastly, the proposed amended and new sections do not affect the number of individuals subject to the rule's applicability and will not affect this state's economy.

REQUEST FOR PUBLIC COMMENT. If you want to comment on the proposal, submit your written comments by 5:00 p.m. CDT on September 21, 2020. A request for a public hearing must be sent separately from your written comments. Send written comments or hearing requests by email to rules@txdmv.gov or by mail to Office of General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731. If a hearing is held, the department will consider written comments and public testimony presented at the hearing.

STATUTORY AUTHORITY. The amendment and new rule are proposed under Occupations Code §2301.155, which provides the board authority to adopt rules as necessary or convenient to administer Occupations Code Chapter 2301 and to govern practice and procedure before the board and 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.

CROSS REFERENCE TO STATUTE. Occupations Code §2301.807.

§215.500.Administrative Sanctions andProcedures.

(a) An administrative sanction may include:

(1) denial of an application for a license;

(2) suspension of a license;

(3) revocation of a license; [or]

(4) the imposition of civil penalties; or [.]

(5) a refund under §215.504 of this title (concerning buyer or lessee refund).

(b) The department shall issue and mail a Notice of Department Decision to a license applicant, license holder, or other person by certified mail, return receipt requested, to the last known address upon a determination under Occupations Code, Chapters 2301 and 2302 or Transportation Code, Chapter 503 that:

(1) an application for a license should be denied; or

(2) administrative sanctions should be imposed.

(c) The last known address of a license applicant, license holder, or other person is the last mailing address provided to the department when the license applicant applies for its license, when a license holder renews its license, or when the license holder notifies the department of a change in the license holder's mailing address.

(d) The Notice of Department Decision shall include:

(1) a statement describing the department decision and the effective date;

(2) a description of each alleged violation;

(3) a description of each administrative sanction being proposed;

(4) a statement regarding the legal basis for each administrative sanction;

(5) a statement regarding the license applicant, license holder, or other person's right to request a hearing;

(6) the procedure to request a hearing, including the deadline for filing; and

(7) notice to the license applicant, license holder, or other person that the proposed decision and administrative sanctions in the Notice of Department Decision will become final on the date specified if the license applicant, license holder, or other person fails to timely request a hearing.

(e) The license applicant, license holder, or other person must submit, in writing, a request for a hearing under this section. The department must receive a request for a hearing within 26 days of the date of the Notice of Department Decision.

(f) If the department receives a timely request for a hearing, the department will set a hearing date and give notice to the license applicant, license holder, or other person of the date, time, and location of the hearing.

(g) If the license applicant, license holder, or other person does not make a timely request for a hearing or enter into a settlement agreement within 27 days of the date of the Notice of Department Decision, the department decision becomes final.

§215. 504. Buyer or Lessee Refund.

(a) The board may order a person to issue a refund if, after a proceeding under this chapter, it determines the person violated or has violated Occupations Code Chapter 2301 or department rules.

(b) Under this section, a refund is the return of any percentage ordered by the department of funds paid, or contracted to be paid, to a person, whether those funds are documented as a separate line item or part of the overall amount paid by a consumer. Refund may include overpayments, fees paid for services not rendered, and payments made for products not delivered.

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 7, 2020.

TRD-202003214

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


CHAPTER 218. MOTOR CARRIERS

SUBCHAPTER F. ENFORCEMENT

43 TAC §218.72

INTRODUCTION. The Texas Department of Motor Vehicles (department) proposes to amend Title 43 of the Texas Administrative Code (TAC) §218.72 concerning administrative sanctions. The proposed amendment implements Senate Bill 604, 86th Legislature, Regular Session (2019). Senate Bill 604 amended Transportation Code Chapter 643 by adding §643.257, authorizing the department to order a motor carrier that violates Transportation Code Chapter 643, or a department rule or order issued under that chapter, to pay a refund to a consumer who paid the motor carrier to transport household goods.

EXPLANATION. The proposed amendment to §218.72 adds proposed new subsection (d), which adds refunds to the existing list of administrative sanctions available to the department. Department enforcement will employ the use of refunds within existing enforcement procedures outlined in Chapter 218.

Proposed new §218.72(d)(1) permits the department to order a motor carrier that violates Transportation Code Chapter 643, or a department rule or order issued under that chapter, to pay a refund to a consumer who paid the motor carrier to transport household goods. Proposed new §218.72(d)(1) is necessary to implement SB 604.

Proposed new §218.72(d)(2) defines "refund" as the return of any percentage of funds paid, or contracted to be paid, to a motor carrier transporting household goods, whether those funds are documented as a separate line item or included in the overall amount paid by a customer. Proposed new §218.72(d)(2) is necessary to explain the meaning of "refund" in the subsection.

Proposed new §218.72(d)(2)(A) clarifies that a refund includes overpayments, fees paid for services not rendered, and fees paid for charges not listed on the household mover's tariff after the household mover takes possession of the customer's property. Proposed new §218.72(d)(2)(B) clarifies that a refund does not include any consideration of damages or harm over the amount paid by the customer. Proposed new §218.72(d)(2)(A) and (B) are necessary to clarify that a refund is not a mechanism for restitution or to make the consumer whole, such as a household good mover reimbursing the consumer for the cost of third-party services to complete services not rendered by the mover. A refund is a tool that may be used by the department's enforcement division to order a household good mover to refund the customer by returning money paid, or contracted to be paid, because they did not receive a service or item. The refund all circumstance would be limited to funds paid or contracted to be paid to the household goods mover.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Linda M. Flores, Chief Financial Officer, has determined that for each year of the first five years the amendment will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. Corrie Thompson, Director of the Enforcement Division, has determined that there will be no measurable effect on local employment or the local economy as a result of the proposal.

PUBLIC BENEFIT AND COST NOTE. Ms. Thompson has also determined that, for each year of the first five years the amended section is in effect, there are public benefits anticipated from the ability of the department to order refunds.

Anticipated Public Benefits. The public benefits anticipated as a result of the proposal include expanding the administrative tools that the department has to sanction household good movers that violate the Transportation Code and department rules and providing consumers a means of receiving a refund of money paid to household good movers for overpayments, fees paid for services not rendered, and fees paid for charges not listed on the household mover's tariff after the household mover takes possession of the customer's property.

Anticipated Costs to Comply with the Proposal. Ms. Thompson anticipates that there will be no costs to comply with these rules. The proposed rule does not create any compliance requirement of cost of compliance on a regulated person. The proposed rule implements a potential statutory penalty provision that the department may order against a person who violates Transportation Code Chapter 643 or a rule adopted under the chapter.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. As required by the Government Code §2006.002, the department has determined that the proposed new amendment will not have an adverse economic effect on small businesses, micro-businesses, or rural communities as a result of implementing this rule because it will not create additional requirements or costs on regulated persons. Therefore, the department is not required to prepare a regulatory flexibility analysis under Government Code §2006.002.

TAKINGS IMPACT ASSESSMENT. The department has determined that no private real property interests are affected by this proposal 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, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT. The department has determined that during the first five years the proposed amendment is in effect, no government program would be created or eliminated. Implementation of the proposed amendments will not require the creation of new employee positions or elimination of existing employee positions. Implementation would not require an increase or decrease in future legislative appropriations to the department or an increase or decrease of fees paid to the department. The proposed amendment does not create a new regulation, or expand, or repeal an existing regulation. Lastly, the proposed amendment does not affect the number of individuals subject to the rule's applicability and will not affect this state's economy.

REQUEST FOR PUBLIC COMMENT. If you want to comment on the proposal, submit your written comments by 5:00 p.m. CDT on September 21, 2020. A request for a public hearing must be sent separately from your written comments. Send written comments or hearing requests by email to rules@txdmv.gov or by mail to Office of General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731. If a hearing is held, the department will consider written comments and public testimony presented at the hearing.

STATUTORY AUTHORITY. The amendment is proposed under Transportation Code §643.003, which provides the department authority to adopt rules to administer Chapter 643 and 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.

CROSS REFERENCE TO STATUTE. Transportation Code §643.257.

§218.72.Administrative Sanctions.

(a) Grounds for suspension and revocation. Transportation Code, §643.252 provides the grounds for which the department can suspend or revoke a certificate of registration issued under Transportation Code, Chapter 643.

(b) Department of Public Safety enforcement recommendations.

(1) The department may suspend or revoke a certificate of registration of a motor carrier upon a written request by the Department of Public Safety, if a motor carrier:

(A) has an unsatisfactory safety rating under 49 C.F.R., Part 385; or

(B) has multiple violations of Transportation Code, Chapter 644, a rule adopted under that chapter, or Transportation Code, Title 7, Subtitle C.

(2) A request under paragraph (1) of this subsection must include documentation showing the violation.

(c) Probation.

(1) The department may probate any suspension ordered under this section.

(2) In determining whether to probate a suspension, the department will review:

(A) the seriousness of the violation;

(B) prior violations by the motor carrier;

(C) whether the department has previously probated a suspension for the motor carrier;

(D) cooperation by the motor carrier in the investigation and enforcement proceeding; and

(E) the ability of the motor carrier to correct the violations.

(3) The department shall set the length of the probation based on the seriousness of the violation and previous violations by the motor carrier.

(4) The department will require that the motor carrier report monthly to the department any information necessary to determine compliance with the terms of the probation.

(5) The department may revoke the probation and order the initial suspension and administrative penalty if the motor carrier fails to abide by any terms of the probation.

(d) Refund.

(1) The department may order a motor carrier that violates Transportation Code Chapter 643, department rules, or a department order adopted under Transportation Code Chapter 643 to issue a refund to a customer who paid the motor carrier to transport household goods.

(2) Under this subsection, a refund is the return of any percentage of funds paid, or contracted to be paid, to a motor carrier transporting household goods, whether those funds are documented as a separate line item or included in the overall amount paid by a customer.

(A) A refund includes overpayments, fees paid for services not rendered, and fees paid for charges not listed on the household mover's tariff after the household mover takes possession of the customer's property.

(B) A refund does not include any consideration of damages or harm over the amount paid by the customer.

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 7, 2020.

TRD-202003215

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


CHAPTER 219. OVERSIZE AND OVERWEIGHT VEHICLES AND LOADS

INTRODUCTION. The Texas Department of Motor Vehicles (department) proposes amendments to Title 43 TAC §§219.2, 219.11, 219.13 - 219.15, 219.42, 219.43, and 219.61 - 219.63, concerning: 1) payment methods for oversize or overweight permits to streamline department processes; and 2) escort flag vehicles to conform the rules to Transportation Code §547.305(e-3) and (f)(1), as added by House Bill (HB) 61, 86th Legislature, Regular Session (2019).

EXPLANATION. Amendments to Title 43 TAC Subchapters A, B, D, and E are necessary to conform the rules to HB 61, 86th Legislature, Regular Session (2019). House Bill 61 added a new definition for "escort flag vehicle" under Transportation Code §547.305 and provided the operator of an escort flag vehicle with the option of equipping the escort flag vehicle with alternating or flashing blue and amber lights.

Amendments to Title 43 TAC §219.11(f) are necessary to streamline department processes to improve program efficiency by eliminating two escrow account payment methods for customers that purchase oversize or overweight permits. One of the escrow account payment methods requires department personnel to manually process payments, and the second escrow account payment method requires department personnel to reconcile the payment records.

Transportation Code §547.305(f)(1) defines an "escort flag vehicle" as a vehicle that precedes or follows an oversize or overweight vehicle to facilitate the safe movement of the oversize or overweight vehicle over roads. To implement HB 61, the term, "escort vehicle" is changed to the term "escort flag vehicle" throughout Title 43 TAC Chapter 219.

Transportation Code §547.305(e-3) is permissive, allowing escort flag vehicles to be equipped with alternating or flashing blue and amber lights. Transportation Code §623.099(c)(1) already requires that escort flag vehicles have two lights flashing simultaneously or one rotating amber beacon of not less than eight inches when escorting a manufactured house. Transportation Code §623.129 already requires that escort flag vehicles have two lights flashing simultaneously or one rotating amber beacon of not less than eight inches when escorting a portable building and compatible cargo because the requirements under Transportation Code §623.099 apply to the movement of these vehicles.

Transportation Code §623.008(b) allows the department to require a person operating under a permit issued under the subtitle to use one or more escort flag vehicles if required by the Texas Department of Transportation or for the safe movement over roads of an oversize or overweight vehicle. Transportation Code §547.305(e-3) adds that the flashing lights for an escort flag vehicle may be alternating flashing blue and amber lights, and it controls under Government Code §311.025(a) to the extent of a conflict with §623.099 because §547.305(e-3) is the latest legislative enactment.

Proposed amendments to §219.2 add the word "flag" to the term "escort vehicle" to define "escort flag vehicle" as a vehicle that precedes or follows an oversize or overweight vehicle to facilitate the safe movement of the oversize or overweight vehicle over roads. This change is necessary to track the statutory language in Transportation Code §547.305(f)(1) and clarify the use of the term throughout Title 43 TAC Chapter 219. Proposed amendments to §219.2 delete the term "permit account card" and renumber the remaining definitions because the department is proposing to eliminate this form of payment for an oversize or overweight permit.

Proposed amendments throughout §219.11 add the word "flag" to the term "escort vehicle" to conform to the definition of the term "escort flag vehicle" under Transportation Code §547.305(f)(1). Proposed amendment to §219.11(k)(7)(B) track the statutory language in Transportation Code §547.305, which permits an escort flag vehicle to be equipped with alternating or flashing blue and amber lights.

Proposed amendments to §219.15(f)(3)(C) track the statutory language in Transportation Code §547.305, which permits an escort flag vehicle to be equipped with alternating or flashing blue and amber lights.

Proposed amendments to §§219.13-219.15, 219.42, 219.43, 219.61-219.63 add the word "flag" to the term "escort vehicle" to clarify that the use of the term throughout the chapter is as defined under proposed amended §219.2 regarding an "escort flag vehicle."

Proposed amendments to §219.11(f) eliminate both permit account cards and escrow accounts (together referred to as "escrow accounts") as methods of payment for oversize or overweight permits.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Linda M. Flores, Chief Financial Officer, has determined that for each year of the first five years the amendments will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. The proposal does not add to or decrease state revenues or expenditures, and local governments are not involved in enforcing or complying with the proposed rule. Jimmy Archer, Director of the Motor Carrier Division, does not anticipate any measurable effect on local employment or the local economy as a result of this proposal.

PUBLIC BENEFIT AND COST NOTE. Mr. Archer has also determined that, for each year of the first five years the amended sections are in effect, there are anticipated public benefits.

Anticipated Public Benefits. The public benefits anticipated as a result of the proposal include conforming the rules to existing law under to Transportation Code §547.305(e-3) and (f)(1). The public benefits of removing the escrow account payment methods for purchasing an oversize or overweight permit include improved efficiency by encouraging the use of electronic payment methods and reducing the amount of transactions that department personnel must manually process or reconcile.

Anticipated Costs To Comply With the Proposal. Mr. Archer anticipates that regulated entities will not incur costs as a result of the proposed rules.

The proposed amendments do not directly impose any fees for using the following payment methods: credit card, Automatic Clearing House (ACH), check, money order, cashier's check, and cash. The cost, if any, in this proposal is the difference between using an escrow account and another authorized method of payment.

Each payment method may result in an indirect cost to a customer from the customer's third-party vendor (such as the bank's fee for a cashier's check), or it may result in a direct cost to a customer if a customer pays in cash by traveling to one of the department's Regional Service Centers to pay.

The department anticipates that the customer will have the information necessary to determine as a business decision its own costs and the customer's business needs. Because the department does not impose additional fees, the customer will be in the best place to determine the most efficient way to pay for an oversize or overweight permit.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. As required by Government Code, §2006.002, the department has determined that the proposed amendments will not have an adverse economic effect on small businesses, micro-business, and rural communities because the proposed amendments conform Title 43 TAC Chapter 219, Subchapters A, B, D, and E to Transportation Code §547.305(e-3) and (f)(1) and do not add additional requirements to regulated persons. Although the department proposes to remove two methods of payment for oversize or overweight permits, customers will continue to have alternative methods of payment, including methods that cost less than the methods the department proposes to remove.

The department currently accepts the following methods of payment for oversize or overweight permits for online purchases through the Texas Permitting and Routing Optimization System (TxPROS): credit card, ACH, check, money order, cashier's check, cash, escrow accounts administered by the department, and the Permit Account Card (PAC), which is an escrow account administered by Frost Bank. The department currently accepts these same methods of payment, except for the ACH, for purchases of oversize or overweight permits by non-online methods, such as applications submitted by facsimile.

To determine whether the proposed removal of the two escrow methods of payment would have an adverse economic effect on small businesses, the department analyzed the total direct and indirect costs to a customer to buy one of three different permits using the current methods of payment. For the purposes of this analysis, the department excluded any setup fees or monthly service or maintenance fees charged by the third-party service providers, as well as the requirement for a customer to make an initial deposit of $305 with the department to set up an escrow account that the department administers under §219.11(f). Setup fees and monthly service or maintenance fees varied too much, based on the type of account or how much money a customer has in their account. Also, the Elavon fees vary by contract. Some banks waive monthly service or maintenance fees, based on the type of account. The department assumed that the customers who pay by check already have a checking account and that they use the checking account to write checks for other purchases, so the department did not factor in the cost for buying printed checks. The department also assumed that the average customer must drive 20 miles to pick up a money order or cashier's check, and that the average customer must drive 50 miles to the closest Regional Service Center if they want to pay by cash. For mileage costs, the department used the state's automobile mileage reimbursement rate of $0.57.5 per mile, which amounts to $11.50 for 20 miles and $28.75 for 50 miles. For purposes of this analysis, the department chose the cheapest oversize or overweight permit, the most expensive oversize or overweight permit, and one of the most commonly purchased oversize or overweight permits.

Figure: 43 TAC Chapter 219 - Preamble (.pdf)

The department determined that there will not be an adverse economic effect on small or micro-businesses as a result of the enforcement or administration of amendments to §219.11(f). A total of 30,529 customers purchased oversize and/or overweight permits in the last twelve months. The department was unable to obtain information regarding the number of customers affected by this proposal that qualify as a small business or a micro-business under Government Code 2006.002. However, out of 30,529 customers who purchased oversize and/or overweight permits in the last twelve months, the department estimates that a majority of them are small or micro-businesses that may be affected by this proposal. Also, in the last 14 months, only 317 customers purchased oversize or overweight permits using an escrow account that the department administers. In the last 14 months, only 225 customers purchased oversize or overweight permits using the PAC. The cost of compliance will not vary between large businesses and small or micro-businesses. As demonstrated in the calculations above, customers will continue to have methods of payment that are cheaper than the two methods of payment that the department proposes to remove.

The objective of this proposal is to enable more department transactions to be done electronically, which should make the program more efficient. The proposal removes two oversize or overweight permit escrow account payment methods that require physical handling by the department. Although Frost Bank administers the PAC escrow accounts, the department's staff must engage in a month-end reconciliation process for payments made by PAC. The proposal allows customers to continue using other payment methods to purchase the permits with no additional fees imposed by the department, including: payment by credit card, ACH, check, money order, cashier's check, and cash. The customer is in the best position to make the business decision to determine which method of payment is most suitable and cost-effective for their business practices.

The department balanced the needs of providing cost-effective payment options for customers with the goal of improving program efficiency by having more transactions processed electronically. The department determined that due to the other available payment options, terminating escrow accounts will improve program efficiency.

The department determined that the proposal will not have an adverse economic effect on rural communities because the department does not charge municipalities for oversize or overweight permits. As a result, and in accordance with Government Code §2006.002(c), it is not necessary for the department to address rural communities in its regulatory flexibility analysis.

TAKINGS IMPACT ASSESSMENT. The department has determined that no private real property interests are affected by this proposal 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, therefore, does not constitute a taking or require a takings impact assessment under the Government Code, §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT. The department has determined that each year of the first five years the proposed amendments are in effect, the proposed amendments:

-will not create or eliminate a government program;

-will not require the creation of new employee positions or the elimination of existing employee positions;

-will not require an increase or decrease in future legislative appropriations to the department;

-will not require an increase or decrease in fees paid to the department;

-will not create new regulations;

-will not expand existing regulations;

-will repeal existing regulations;

-will not increase or decrease the number of individuals subject to the rule's applicability; and

-will not positively or adversely affect the Texas economy.

REQUEST FOR PUBLIC COMMENT.

If you want to comment on the proposal, submit your written comments by 5:00 p.m. CDT on September 21, 2020. A request for a public hearing must be sent separately from your written comments. Send written comments or hearing requests by email to rules@txdmv.gov or by mail to Office of General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731. If a hearing is held, the department will consider written comments and public testimony presented at the hearing.

SUBCHAPTER A. GENERAL PROVISIONS

43 TAC §219.2

STATUTORY AUTHORITY. The department proposes amendments under Transportation Code §§623.002, 1001.009, and 1002.001.

- Transportation Code §632.002 authorizes the board of the Texas Department of Motor Vehicles (board) to adopt rules as necessary to implement Transportation Code Chapter 623.

- Transportation Code §1001.009 authorizes the board to adopt rules regarding the method of collection of a fee for any goods or services provided by the department.

- Transportation Code §1002.001 authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department under the Transportation Code.

CROSS REFERENCE TO STATUTE. Transportation Code §547.305, Chapter 621, and Chapter 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) 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.

(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 flag vehicle--A vehicle that precedes or follows an oversize or overweight vehicle to facilitate the safe movement of the oversize or overweight vehicle over roads [A motor vehicle used to warn traffic of the presence of an oversize and/or overweight 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 by Transportation Code, §643.001.

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

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

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

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

[(47) 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.]

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

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

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

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

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

(52) [(53)] 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.

(53) [(54)] 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.

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

(55) [(56)] Roll stability support safety system--An electronic system that monitors vehicle dynamics and estimates the stability of a vehicle based on its mass and velocity, and actively adjusts vehicle systems including the throttle and/or brake(s) to maintain stability when a rollover risk is detected.

(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.

(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) [(67)] Tire size--The inches of lateral tread width.

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

(68) [(69)] 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) [(70)] Truck--A motor vehicle designed, used, or maintained primarily for the transportation of property.

(70) [(71)] Truck blind spot systems--Vehicle-based sensor devices that detect other vehicles or objects located in the vehicle's adjacent lanes. Warnings can be visual, audible, vibrating, or tactile.

(71) [(72)] 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.

(72) [(73)] 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.

(73) [(74)] 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.

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

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

(76) [(77)] 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.

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

(78) [(79)] 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) [(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.

(80) [(81)] 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.

(81) [(82)] 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.

(82) [(83)] Windshield sticker--Identifying insignia indicating that a permit has been issued in accordance with Subchapter C of this chapter.

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

(84) [(85)] 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.

(85) [(86)] 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.

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 7, 2020.

TRD-202003204

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


SUBCHAPTER B. GENERAL PERMITS

43 TAC §§219.11, 219.13 - 219.15

STATUTORY AUTHORITY. The department proposes amendments under Transportation Code §§623.002, 1001.009, and 1002.001.

- Transportation Code §632.002 authorizes the board of the Texas Department of Motor Vehicles (board) to adopt rules as necessary to implement Transportation Code Chapter 623.

- Transportation Code §1001.009 authorizes the board to adopt rules regarding the method of collection of a fee for any goods or services provided by the department.

- Transportation Code §1002.001 authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department under the Transportation Code.

CROSS REFERENCE TO STATUTE. Transportation Code §547.305, Chapter 621, and Chapter 623.

§219.11.General Oversize/Overweight Permit Requirements and Procedures.

(a) Purpose and scope. This section contains general requirements relating to oversize/overweight permits, including single-trip permits. Specific requirements for each type of specialty permit are provided for in this chapter.

(b) Prerequisites to obtaining an oversize/overweight permit. Unless exempted by law or this chapter, the following requirements must be met prior to the issuance of an oversize/overweight permit.

(1) Commercial motor carrier registration or surety bond. Prior to obtaining an oversize/overweight permit, an applicant permitted under the provisions of Transportation Code, Chapter 623, Subchapter D, must be registered as a commercial motor carrier under Chapter 218 of this title (relating to Motor Carriers) or, if not required to obtain a motor carrier registration, file a surety bond with the department as described in subsection (n) of this section.

(2) Vehicle registration. A vehicle registered with a permit plate will not be issued an oversize/overweight permit under this subchapter. A permitted vehicle operating under this subchapter must be registered with one of the following types of vehicle registration:

(A) current Texas license plates that indicate the permitted vehicle is registered for maximum legal gross weight or the maximum weight the vehicle can transport;

(B) Texas temporary vehicle registration;

(C) current out of state license plates that are apportioned for travel in Texas; or

(D) foreign commercial vehicles registered under Texas annual registration.

(c) Permit application.

(1) An application for a permit shall be made in a form and by the method prescribed by the department, and at a minimum shall include the following:

(A) name, address, telephone number, and email address (if requested) of the applicant;

(B) applicant's customer identification number;

(C) applicant's MCR number or USDOT Number, if applicable;

(D) complete load description, including maximum width, height, length, overhang, and gross weight;

(E) complete description of vehicle, including truck year, make, license plate number and state of issuance, and vehicle identification number, if required;

(F) vehicle axle and tire information including number of axles, distance between axles, axle weights, number of tires, and tire size for overweight permit applications; and

(G) any other information required by law.

(2) Applications transmitted electronically are considered signed if a digital signature is transmitted with the application and intended by the applicant to authenticate the application.

(A) The department may only accept a digital signature used to authenticate an application under procedures that comply with any applicable rules adopted by the Department of Information Resources regarding department use or acceptance of a digital signature.

(B) The department may only accept a digital signature to authenticate an application if the digital signature is:

(i) unique to the person using it;

(ii) capable of independent verification;

(iii) under the sole control of the person using it;and

(iv) transmitted in a manner that will make it infeasible to change the data in the communication or digital signature without invalidating the digital signature.

(d) Maximum permit weight limits.

(1) General. An overweight permitted vehicle will not be routed over a load-restricted bridge when exceeding the posted capacity of the bridge, unless a special exception is granted by TxDOT, based on an analysis of the bridge performed by a TxDOT approved licensed professional engineer or by TxDOT. Any analysis by a non-TxDOT engineer must have final approval from TxDOT.

(A) An axle group must have a minimum spacing of four feet, measured from center of axle to center of axle, between each axle in the group to achieve the maximum permit weight for the group.

(B) The maximum permit weight for an axle group with spacing of five or more feet between each axle will be based on an engineering study of the equipment conducted by TxDOT.

(C) A permitted vehicle will be allowed to have air suspension, hydraulic suspension, and mechanical suspension axles in a common weight equalizing suspension system for any axle group.

(D) The department may permit axle weights greater than those specified in this section, for a specific individual permit request, based on an engineering study of the route and hauling equipment performed by a TxDOT approved licensed professional engineer or by TxDOT. Any analysis by a non-TxDOT engineer must have final approval from TxDOT.

(E) A permitted vehicle or combination of vehicles may not exceed the manufacturer's rated tire carrying capacity, unless expressly authorized in the language on the permit based on an analysis performed by a TxDOT approved licensed professional engineer or by TxDOT. Any analysis by a non-TxDOT engineer must have final approval from TxDOT.

(F) Two or more consecutive axle groups having an axle spacing of less than 12 feet, measured from the center of the last axle of the preceding group to the center of the first axle of the following group, will be reduced by 2.5% for each foot less than 12 feet.

(2) Maximum axle weight limits. Maximum permit weight for an axle or axle group is based on 650 pounds per inch of tire width or the following axle or axle group weights, whichever is the lesser amount:

(A) single axle--25,000 pounds;

(B) two axle group--46,000 pounds;

(C) three axle group--60,000 pounds;

(D) four axle group--70,000 pounds;

(E) five axle group--81,400 pounds;

(F) axle group with six or more axles--determined by TxDOT based on an engineering study of the equipment, which will include the type of steering system used, the type of axle suspension, the spacing distance between each axle, the number of tires per axle, and the tire size on each axle; or

(G) trunnion axles--30,000 pounds per axle if the trunnion configuration has:

(i) two axles;

(ii) eight tires per axle;

(iii) axles a minimum of 10 feet in width; and

(iv) at least five feet of spacing between the axles, not to exceed six feet.

(3) Weight limits for load restricted roads. Maximum permit weight for an axle or axle group, when traveling on a load restricted road, will be based on 650 pounds per inch of tire width or the following axle or axle group weights, whichever is the lesser amount:

(A) single axle--22,500 pounds;

(B) two axle group--41,400 pounds;

(C) three axle group--54,000 pounds;

(D) four axle group--63,000 pounds;

(E) five axle group--73,260 pounds;

(F) axle group with six or more axles--determined by TxDOT based on an engineering study of the equipment, which will include the type of steering system used, the type of axle suspension, the spacing distance between each axle, the number of tires per axle, and the tire size on each axle;

(G) trunnion axles--54,000 pounds; and

(H) two or more consecutive axle groups having an axle spacing of less than 12 feet, measured from the center of the last axle of the preceding group to the center of the first axle of the following group will be reduced by 2.5% for each foot less than 12 feet.

(e) Permit issuance.

(1) General. Upon receiving an application in the form prescribed by the department, the department will review the permit application for the appropriate information and will then determine the most practical route based on information provided by TxDOT.

(2) Routing.

(A) A permitted vehicle will be routed over the most practical route available taking into consideration:

(i) the size and weight of the overdimension load in relation to vertical clearances, width restrictions, steep grades, and weak or load restricted bridges;

(ii) the geometrics of the roadway in comparison to the overdimension load;

(iii) sections of highways restricted to specific load sizes and weights due to construction, maintenance, and hazardous conditions;

(iv) traffic conditions, including traffic volume;

(v) route designations by municipalities in accordance with Transportation Code, §623.072;

(vi) load restricted roads; and

(vii) other considerations for the safe transportation of the load.

(B) When a permit applicant desires a route other than the most practical, more than one permit will be required for the trip unless an exception is granted by the department.

(3) Movement to and from point of origin or place of business. A permitted vehicle will be allowed to:

(A) move empty oversize and overweight hauling equipment to and from the job site; and

(B) move oversize and overweight hauling equipment with a load from the permitted vehicle's point of origin to pick up a permitted load, and to the permitted vehicle's point of origin or the permittee's place of business after dropping off a permitted load, as long as:

(i) the load does not exceed legal size and weight limits under Transportation Code, Chapters 621 and 622; and

(ii) the transport complies with the permit, including the time period stated on the permit.

(f) Payment of permit fees, refunds.

(1) Payment methods. All permit applications must be accompanied by the proper fee, which shall be payable as provided by §209.23 of this title (relating to Methods of Payment).

[(A) Permit Account Card (PAC). Application for a PAC should be made directly to the issuing institution. A PAC must be established and maintained according to the contract provisions stipulated between the PAC holder and the financial institution under contract to the department and the Comptroller of Public Accounts.]

[(B) Escrow accounts. A permit applicant may establish an escrow account with the department for the specific purpose of paying any fee that is related to the issuance of a permit under this subchapter.]

[(i) A permit applicant who desires to establish an escrow account shall complete and sign an escrow account agreement, and shall return the completed and signed agreement to the department with a check in the minimum amount of $305, which shall be deposited to the appropriate fund by the department with the Comptroller of Public Accounts. In lieu of submitting a check for the initial deposit to an applicant's escrow account, the applicant may transfer funds to the department electronically.]

[(ii) Upon initial deposit, and each subsequent deposit made by the escrow account holder, $5 will be charged as an escrow account administrative fee.]

[(iii) The escrow account holder is responsible for monitoring of the escrow account balance.]

[(iv) An escrow account holder must submit a written request to the department to terminate the escrow account agreement. Any remaining balance will be returned to the escrow account holder.]

(2) Refunds. A permit fee will not be refunded after the permit number has been issued unless such refund is necessary to correct an error made by the permit officer.

(g) Amendments. A permit may be amended for the following reasons:

(1) vehicle breakdown;

(2) changing the intermediate points in an approved permit route;

(3) extending the expiration date due to conditions which would cause the move to be delayed;

(4) changing route origin or route destination prior to the start date as listed on the permit;

(5) changing vehicle size limits prior to the permit start date as listed on the permit, provided that changing the vehicle size limit does not necessitate a change in the approved route; and

(6) correcting any mistake that is made due to permit officer error.

(h) Requirements for overwidth loads.

(1) Unless stated otherwise on the permit, an overwidth load must travel in the outside traffic lane on multi-lane highways, when the width of the load exceeds 12 feet.

(2) Overwidth loads are subject to the escort requirements of subsection (k) of this section.

(3) A permitted vehicle exceeding 16 feet in width will not be routed on the main lanes of a controlled access highway, unless an exception is granted by TxDOT, based on a route and traffic study. The load may be permitted on the frontage roads when available, if the movement will not pose a safety hazard to other highway users.

(4) An applicant requesting a permit to move a load exceeding 20 feet wide will be furnished with a proposed route. The applicant must physically inspect the proposed route to determine if the vehicle and load can safely negotiate it, unless an exception is granted based on a route and traffic study conducted by TxDOT. A permit application and the appropriate fee are required for every route inspection.

(A) The applicant must notify the department in writing whether the vehicle and load can or cannot safely negotiate the proposed route.

(B) If any section of the proposed route is unacceptable, the applicant shall provide the department with an alternate route around the unacceptable section.

(C) Once a route is decided upon and a permit issued, the permit may not be amended unless an exception is granted by the department.

(i) Requirements for overlength loads.

(1) Overlength loads are subject to the escort requirements stated in subsection (k) of this section.

(2) A single vehicle, such as a motor crane, that has a permanently mounted boom is not considered as having either front or rear overhang as a result of the boom because the boom is an integral part of the vehicle.

(3) When a single vehicle with a permanently attached boom exceeds the maximum legal length of 45 feet, a permit will not be issued if the boom projects more than 25 feet beyond the front bumper of the vehicle, or when the boom projects more than 30 feet beyond the rear bumper of the vehicle, unless an exception is granted by TxDOT, based on a route and traffic study.

(4) Maximum permit length for a single vehicle is 75 feet.

(5) A load extending more than 20 feet beyond the front or rearmost portion of the load carrying surface of the permitted vehicle must have a rear escort flag vehicle, unless an exception is granted by TxDOT, based on a route and traffic study.

(6) A permit will not be issued for an oversize vehicle and load with:

(A) more than 25 feet front overhang; or

(B) more than 30 feet rear overhang, unless an exception is granted by TxDOT, based on a route and traffic study.

(7) An applicant requesting a permit to move an oversize vehicle and load exceeding 125 feet overall length will be furnished with a proposed route. The applicant must physically inspect the proposed route to determine if the oversize vehicle and load can safely negotiate it, unless an exception is granted based on a route and traffic study conducted by TxDOT. A permit application and the appropriate fee are required for every route inspection.

(A) The applicant must notify the department in writing whether the oversize vehicle and load can or cannot safely negotiate the proposed route.

(B) If any section of the proposed route is unacceptable, the applicant shall provide the department with an alternate route around the unacceptable section.

(C) Once a route is decided upon and a permit issued, the permit may not be amended unless an exception is granted by the department.

(8) A permitted vehicle that is not overwidth or overheight, and does not exceed 150 feet overall length, may be moved in a convoy consisting of not more than four overlength permitted vehicles. A permitted vehicle that is not overwidth or overheight that exceeds 150 feet, but does not exceed 180 feet overall length, may be moved in a convoy consisting of not more than two overlength permitted vehicles. Convoys are subject to the requirements of subsection (k) of this section. Each permitted vehicle in the convoy must:

(A) be spaced at least 1,000 feet, but not more than 2,000 feet, from any other permitted vehicle in the convoy; and

(B) have a rotating amber beacon or an amber pulsating light, not less than eight inches in diameter, mounted at the rear top of the load being transported.

(j) Requirements for overheight loads.

(1) Overheight loads are subject to the escort requirements stated in subsection (k) of this section.

(2) An applicant requesting a permit to move an oversize vehicle and load with an overall height of 19 feet or greater will be furnished with a proposed route. The applicant must physically inspect the proposed route to determine if the oversize vehicle and load can safely negotiate it, unless an exception is granted based on a route and traffic study conducted by TxDOT. A permit application and the appropriate fee are required for every route inspection.

(A) The applicant must notify the department in writing whether the oversize vehicle and load can or cannot safely negotiate the proposed route.

(B) If any section of the proposed route is unacceptable, the applicant shall provide the department with an alternate route around the unacceptable section.

(C) Once a route is decided upon and a permit issued, the permit may not be amended unless an exception is granted by the department.

(k) Escort flag vehicle requirements. Escort flag vehicle requirements are provided to facilitate the safe movement of permitted vehicles and to protect the traveling public during the movement of permitted vehicles. A permittee must provide for escort flag vehicles and law enforcement assistance when required by TxDOT. The requirements in this subsection do not apply to the movement of manufactured housing, portable building units, or portable building compatible cargo.

(1) General.

(A) Applicability. The operator of an escort flag vehicle shall, consistent with applicable law, warn the traveling public when:

(i) a permitted vehicle must travel over the center line of a narrow bridge or roadway;

(ii) a permitted vehicle makes any turning movement that will require the permitted vehicle to travel in the opposing traffic lanes;

(iii) a permitted vehicle reduces speed to cross under a low overhead obstruction or over a bridge;

(iv) a permitted vehicle creates an abnormal and unusual traffic flow pattern; or

(v) in the opinion of TxDOT, warning is required to ensure the safety of the traveling public or safe movement of the permitted vehicle.

(B) Law enforcement assistance. Law enforcement assistance may be required by TxDOT to control traffic when a permitted vehicle is being moved within the corporate limits of a city, or at such times when law enforcement assistance would provide for the safe movement of the permitted vehicle and the traveling public.

(C) Obstructions. It is the responsibility of the permittee to contact utility companies, telephone companies, television cable companies, or other entities as they may require, when it is necessary to raise or lower any overhead wire, traffic signal, street light, television cable, sign, or other overhead obstruction. The permittee is responsible for providing the appropriate advance notice as required by each entity.

(2) Escort requirements for overwidth loads. Unless an exception is granted based on a route and traffic study conducted by TxDOT, an overwidth load must:

(A) have a front escort flag vehicle if the width of the load exceeds 14 feet, but does not exceed 16 feet, when traveling on a two lane roadway;

(B) have a rear escort flag vehicle if the width of the load exceeds 14 feet, but does not exceed 16 feet, when traveling on a roadway of four or more lanes; and

(C) have a front and a rear escort flag vehicle for all roads, when the width of the load exceeds 16 feet.

(3) Escort requirements for overlength loads. Unless an exception is granted by TxDOT, based on a route and traffic study, overlength loads must have:

(A) a front escort flag vehicle when traveling on a two lane roadway if the vehicle exceeds 110 feet overall length, but does not exceed 125 feet overall length;

(B) a rear escort flag vehicle when traveling on a multi-lane highway if the vehicle exceeds 110 feet overall length, but does not exceed 125 feet overall length; and

(C) a front and rear escort flag vehicle at all times if the permitted vehicle exceeds 125 feet overall length.

(4) Escort requirements for overheight loads. Unless an exception is granted by TxDOT, based on a route and traffic study, overheight loads must have:

(A) a front escort flag vehicle equipped with a height pole to ensure the vehicle and load can clear all overhead obstructions for any permitted vehicle that exceeds 17 feet in height; and

(B) a front and rear escort flag vehicle for any permitted vehicle exceeding 18 feet in height.

(5) Escort requirements for permitted vehicles exceeding legal limits in more than one dimension. When a load exceeds more than one dimension that requires an escort under this subsection, front and rear escort flag vehicles [escorts] will be required unless an exception is granted by TxDOT.

(6) Escort requirements for convoys. Convoys must have a front escort flag vehicle and a rear escort flag vehicle on all highways at all times.

(7) General equipment requirements. The following special equipment requirements apply to permitted vehicles and escort flag vehicles that are not motorcycles.

(A) An escort flag vehicle must be a single unit with a gross vehicle weight (GVW) of not less than 1,000 pounds nor more than 10,000 pounds.

(B) An escort flag vehicle must be equipped with two flashing amber lights; [or] one rotating amber beacon of not less than eight inches in diameter; or alternating or flashing blue and amber lights, each of which must be visible from all directions [, affixed to the roof of the escort vehicle, which must be visible to the front, sides, and rear of the escort vehicle] while actively engaged in escort duties for the permitted vehicle.

(C) An escort flag vehicle must display a sign, on either the roof of the vehicle, or the front and rear of the vehicle, with the words "OVERSIZE LOAD" or "WIDE LOAD." The sign must be visible from the front and rear of the vehicle while escorting the permitted load. The sign must meet the following specifications:

(i) at least five feet, but not more than seven feet in length, and at least 12 inches, but not more than 18 inches in height;

(ii) the sign must have a yellow background with black lettering;

(iii) letters must be at least eight inches, but not more than 10 inches high with a brush stroke at least 1.41 inches wide; and

(iv) the sign must be visible from the front or rear of the vehicle while escorting the permitted vehicle, and the signs must not be used at any other time.

(D) An escort flag vehicle must maintain two-way communications with the permitted vehicle and other escort flag vehicles involved with the movement of the permitted vehicle.

(E) Warning flags must be either red or orange fluorescent material, at least 12 inches square, securely mounted on a staff or securely fastened by at least one corner to the widest extremities of an overwidth permitted vehicle, and at the rear of an overlength permitted vehicle or a permitted vehicle with a rear overhang in excess of four feet.

(8) Equipment requirements for motorcycles.

(A) An official law enforcement motorcycle may be used as a primary escort flag vehicle for a permitted vehicle traveling within the limits of an incorporated city, if the motorcycle is operated by a highway patrol officer, sheriff, or duly authorized deputy, or municipal police officer.

(B) An escort flag vehicle must maintain two-way communications with the permitted vehicle and other escort flag vehicles involved with the movement of the permitted vehicle.

(l) Restrictions.

(1) Restrictions pertaining to road conditions. Movement of a permitted vehicle is prohibited when road conditions are hazardous based upon the judgment of the operator and law enforcement officials. Law enforcement officials shall make the final determination regarding whether or not conditions are hazardous. Conditions that should be considered hazardous include, but are not limited to:

(A) visibility of less than 2/10 of one mile; or

(B) weather conditions such as wind, rain, ice, sleet, or snow.

(2) Daylight and night movement restrictions.

(A) A permitted vehicle may be moved only during daylight hours unless:

(i) the permitted vehicle is overweight only;

(ii) the permitted vehicle is traveling on an interstate highway and does not exceed 10 feet wide and 100 feet long, with front and rear overhang that complies with legal standards; or

(iii) the permitted vehicle meets the criteria of clause (ii) of this subparagraph and is overweight.

(B) An exception may be granted allowing night movement, based on a route and traffic study conducted by TxDOT. Escort flag vehicles [Escorts] may be required when an exception allowing night movement is granted.

(3) Holiday restrictions. The maximum size limits for a permit issued under Transportation Code, Chapter 623, Subchapter D, for holiday movement is 14 feet wide, 16 feet high, and 110 feet long, unless an exception is granted based on a route and traffic study conducted by TxDOT. The department may restrict holiday movement of specific loads based on a determination that the load could pose a hazard for the traveling public due to local road or traffic conditions.

(4) Curfew restrictions. The operator of a permitted vehicle must observe the curfew movement restrictions of any city or county in which the vehicle is operated. However, only the curfew restrictions listed on the permit apply to the permit.

(m) General provisions.

(1) Multiple commodities.

(A) Except as provided in subparagraph (B) of this paragraph, when a permitted commodity creates a single overdimension, two or more commodities may be hauled as one permit load, provided legal axle weight and gross weight are not exceeded, and provided an overdimension of width, length or height is not created or made greater by the additional commodities. For example, a permit issued for the movement of a 12 foot wide storage tank may also include a 10 foot wide storage tank loaded behind the 12 foot wide tank provided that legal axle weight and gross weight are not exceeded, and provided an overdimension of width, length or height is not created.

(B) When the transport of more than one commodity in a single load creates or makes greater an illegal dimension of length, width, or height the department may issue an oversize permit for such load subject to each of the following conditions.

(i) The permit applicant or the shipper of the commodities files with the department a written certification by the Texas Economic Development and Tourism Office, attesting that issuing the permit will have a significant positive impact on the economy of Texas and that the proposed load of multiple commodities therefore cannot be reasonably dismantled. As used in this clause the term significant positive impact means the creation of not less than 100 new full-time jobs, the preservation of not less than 100 existing full-time jobs, that would otherwise be eliminated if the permit is not issued, or creates or retains not less than one percent of the employment base in the affected economic sector identified in the certification.

(ii) Transport of the commodities does not exceed legal axle and gross load limits.

(iii) The permit is issued in the same manner and under the same provisions as would be applicable to the transport of a single oversize commodity under this section; provided, however, that the shipper and the permittee also must indemnify and hold harmless the department, its board members, officers, and employees from any and all liability for damages or claims of damages including court costs and attorney fees, if any, which may arise from the transport of an oversized load under a permit issued pursuant to this subparagraph.

(iv) The shipper and the permittee must file with the department a certificate of insurance on a form prescribed by the department, or otherwise acceptable to the department, naming the department, its board members, officers, and employees as named or additional insurers on its comprehensive general liability insurance policy for coverage in the amount of $5 million per occurrence, including court costs and attorney fees, if any, which may arise from the transport of an oversized load under a permit issued pursuant to this subparagraph. The insurance policy is to be procured from a company licensed to transact insurance business in the State of Texas.

(v) The shipper and the permittee must file with the department, in addition to all insurance provided in clause (iv) of this subparagraph, a certificate of insurance on a form prescribed by the department, or otherwise acceptable to the department, naming the department, its board members, officers, and employees as insurers under an auto liability insurance policy for the benefit of said insurers in an amount of $5 million per accident. The insurance policy is to be procured from a company licensed to transact insurance business in the State of Texas. If the shipper or the permittee is self-insured with regard to automobile liability then that party must take all steps and perform all acts necessary under the law to indemnify the department, its board members, officers, and employees as if the party had contracted for insurance pursuant to, and in the amount set forth in, the preceding sentence and shall agree to so indemnify the department, its board members, officers, and employees in a manner acceptable to the department.

(vi) Issuance of the permit is approved by written order of the board which written order may be, among other things, specific as to duration and routes.

(C) An applicant requesting a permit to haul a dozer and its detached blade may be issued a permit, as a non-dismantable load, if removal of the blade will decrease the overall width of the load, thereby reducing the hazard to the traveling public.

(2) Oversize hauling equipment. A vehicle that exceeds the legal size limits, as set forth by Transportation Code, Chapter 621, Subchapter C, may only haul a load that exceeds legal size limits unless otherwise noted in this subchapter, but such vehicle may haul an overweight load that does not exceed legal size limits, except for the special exception granted in §219.13(c)(3) of this title (relating to Time Permits).

(n) Surety bonds.

(1) General. The following conditions apply to surety bonds specified in Transportation Code, §623.075.

(A) The surety bond must:

(i) be made payable to the Texas Department of Transportation with the condition that the applicant will pay the Texas Department of Transportation for any damage caused to the highway by the operation of the equipment covered by the surety bond;

(ii) be 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.

(iii) include the complete mailing address and zip code of the principal;

(iv) be filed with the department and have an original signature of the principal;

(v) have a single entity as principal with no other principal names listed; and

(vi) A non-resident agent with a valid Texas insurance license may issue a bond on behalf of an authorized insurance company when in compliance with Insurance Code, Chapter 4056.

(B) A certificate of continuation will not be accepted.

(C) The owner of a vehicle bonded under Transportation Code, §623.075 or §623.163, that damages the state highway system as a result of the permitted vehicle's movement will be notified by certified mail of the amount of damage and will be given 30 days to submit payment for such damage. Failure to make payment within 30 days will result in TxDOT placing the claim with the attorney general for collection.

(D) The venue of any suit for a claim against a surety bond for the movement of a vehicle permitted under the provisions of Transportation Code, Chapter 623, Subchapter D, will be any court of competent jurisdiction in Travis County.

(2) Permit surety bonds.

(A) A surety bond required under the provisions of Transportation Code, Chapter 623, Subchapter D, must be submitted on the department's standard surety bond form in the amount of $10,000.

(B) A facsimile or electronic copy of the surety bond is acceptable in lieu of the original surety bond, for a period not to exceed 10 days from the date of its receipt in the department. If the original surety bond has not arrived in the department by the end of the 10 days, the applicant will not be issued a permit until the original surety bond has been received in the department.

(C) The surety bond requirement does apply to the delivery of farm equipment to a farm equipment dealer.

(D) A surety bond is required when a dealer or transporter of farm equipment or a manufacturer of farm equipment obtains a permit.

(E) The surety bond requirement does not apply to driving or transporting farm equipment which is being used for agricultural purposes if it is driven or transported by or under the authority of the owner of the equipment.

(F) The surety bond requirement does not apply to a vehicle or equipment operated by a motor carrier registered with the department under Transportation Code, Chapters 643 or 645 as amended.

§219.13.Time Permits.

(a) General information. Applications for time permits issued under Transportation Code, Chapter 623, and this section shall be made in accordance with §219.11(b) and (c) of this title (relating to General Oversize/Overweight Permit Requirements and Procedures). Permits issued under this section are governed by the requirements of §219.11(e)(1) of this title.

(b) 30, 60, and 90 day permits. The following conditions apply to time permits issued for overwidth or overlength loads, or overlength vehicles, under this section.

(1) Fees. The fee for a 30-day permit is $120; the fee for a 60-day permit is $180; and the fee for a 90-day permit is $240. All fees are payable in accordance with §219.11(f) of this title. All fees are non-refundable.

(2) Validity of Permit. Time permits are valid for a period of 30, 60, or 90 calendar days, based on the request of the applicant, and will begin on the effective date stated on the permit.

(3) Weight/height limits. The permitted vehicle may not exceed the weight or height limits set forth by Transportation Code, Chapter 621, Subchapters B and C.

(4) Registration requirements for permitted vehicles. Time permits will not be issued to a vehicle or vehicle combination that is registered with temporary vehicle registration.

(5) Vehicle indicated on permit. The permit will indicate only the truck or truck-tractor transporting the load; however, any properly registered trailer or semi-trailer is covered by the permit.

(6) Permit routes. The permit will allow travel on a statewide basis.

(7) Restrictions.

(A) The permitted vehicle must not cross a load restricted bridge or load restricted road when exceeding the posted capacity of the road or bridge.

(B) The permitted vehicle may travel through highway construction or maintenance areas if the dimensions do not exceed the construction restrictions as published by the department.

(C) The permitted vehicle is subject to the restrictions specified in §219.11(l) of this title, and the permittee is responsible for obtaining from the department information concerning current restrictions.

(8) Escort requirements. Permitted vehicles are subject to the escort requirements specified in §219.11(k) of this title.

(9) Transfer of time permits. Time permits issued under this subsection are non-transferable between permittees or vehicles.

(10) Amendments. With the exception of time permits issued under subsection (e)(4) of this section, time permits issued under this subsection will not be amended except in the case of permit officer error.

(c) Overwidth loads. An overwidth time permit may be issued for the movement of any load or overwidth trailer, subject to subsection (a) of this section and the following conditions:

(1) Width requirements.

(A) A time permit will not be issued for a vehicle with a width exceeding 13 feet.

(B) When multiple items are hauled at the same time, the items may not be loaded in a manner that creates a width greater than the width of the widest item being hauled.

(2) Weight, height, and length requirements.

(A) The permitted vehicle shall not exceed legal weight, height, or length according to Transportation Code, Chapter 621, Subchapters B and C.

(B) When multiple items are hauled at the same time, the items may not be loaded in a manner that creates:

(i) a height greater than 14 feet;

(ii) an overlength load; or

(iii) a gross weight exceeding the legal gross or axle weight of the vehicle hauling the load.

(3) Movement of overwidth trailers. When the permitted vehicle is an overwidth trailer, it will be allowed to:

(A) move empty to and from the job site; and

(B) haul a load from the permitted vehicle's point of origin to pick up a permitted load, and to the permitted vehicle's point of origin or the permittee's place of business after dropping off a permitted load, as long as:

(i) the load does not exceed legal size and weight limits under Transportation Code, Chapters 621 and 622; and

(ii) the transport complies with the permit, including the time period stated on the permit.

(4) Use in conjunction with other permits. An overwidth time permit may be used in conjunction with an overlength time permit.

(d) Overlength loads. An overlength time permit may be issued for the transportation of overlength loads or the movement of an overlength self-propelled vehicle, subject to subsection (a) of this section and the following conditions:

(1) Length requirements.

(A) The maximum overall length for the permitted vehicle may not exceed 110 feet.

(B) The department may issue a permit under Transportation Code, §623.071(a) for an overlength load or an overlength self-propelled vehicle that falls within the definition of a nondivisible load orvehicle.

(2) Weight, height and width requirements.

(A) The permitted vehicle may not exceed legal weight, height, or width according to Transportation Code, Chapter 621, Subchapters B and C.

(B) A permit will not be issued when the load has more than 25 feet front overhang, or more than 30 feet rear overhang.

(3) Use in conjunction with other permits. An overlength time permit may be used in conjunction with an overwidth time permit.

(4) Emergency movement. A permitted vehicle transporting utility poles will be allowed emergency night movement for restoring electrical utility service, provided the permitted vehicle is accompanied by a rear escort flag vehicle.

(e) Annual permits.

(1) General information. All permits issued under this subsection are subject to the following conditions.

(A) Fees for permits issued under this subsection are payable as described in §219.11(f) of this title.

(B) Permits issued under this subsection are not transferable.

(C) Vehicles permitted under this subsection shall be operated according to the restrictions described in §219.11(l) of this title. The permittee is responsible for obtaining information concerning current restrictions from the department.

(D) Vehicles permitted under this subsection may not travel over a load restricted bridge or load restricted road when exceeding the posted capacity of the road or bridge.

(E) Vehicles permitted under this subsection may travel through any highway construction or maintenance area provided the dimensions do not exceed the construction restrictions as published by the department.

(F) With the exception of permits issued under paragraph (5) of this subsection, vehicles permitted under this subsection shall be operated according to the escort requirements described in §219.11(k) of this title.

(2) Implements of husbandry. An annual permit may be issued for an implement of husbandry being moved by a dealer in those implements, and for harvesting equipment being moved as part of an agricultural operation. Permits issued under this paragraph are subject to the conditions described in paragraph (1) of this subsection.

(A) The fee for a permit issued under this paragraph is $270, plus the highway maintenance fee specified in Transportation Code, §623.077.

(B) The time period will be for one year and will start on the effective date stated on the permit.

(C) The maximum width may not exceed 16 feet; maximum height may not exceed 16 feet; maximum length may not exceed 110 feet; and maximum weight may not exceed the limits stated in §219.11(d) of this title.

(D) Unless stated otherwise on the permit, the permitted vehicle must travel in the outside traffic lane on multi-lane highways, when the width of the load exceeds 12 feet.

(E) The permitted vehicle must be registered in accordance with Transportation Code, Chapter 502, for maximum weight for the vehicle or vehicle combination, as set forth by Transportation Code, Chapter 621.

(3) Water well drilling machinery. The department may issue annual permits under Transportation Code, §623.071, for water well drilling machinery and equipment that fall within the definition of a nondivisible load or vehicle. Permits issued under this paragraph are subject to the conditions described in paragraph (1) of this subsection.

(A) The fee for a permit issued under this paragraph is $270, plus the highway maintenance fee specified in Transportation Code, §623.077 for an overweight load.

(B) A water well drilling machinery permit is valid for one year from the effective date stated on the permit.

(C) The maximum dimensions may not exceed 16 feet wide, 14 feet 6 inches high, 110 feet long, and maximum weight may not exceed the limits stated in §219.11(d) of this title.

(D) The permitted vehicle must be registered in accordance with Transportation Code, Chapter 502, for the maximum weight of the vehicle, as set forth by Transportation Code, Chapter 621.

(E) A permit issued under this section authorizes a permitted vehicle to operate only on the state highway system.

(4) Envelope vehicle permits.

(A) The department may issue an annual permit under Transportation Code, §623.071(c), to a specific vehicle, for the movement of superheavy or oversize equipment that falls within the definition of a nondivisible load. This permit may not be used for a container, including a trailer or an intermodal container, loaded with divisible cargo. Unless otherwise noted, permits issued under this paragraph are subject to the conditions described in paragraph (1) of this subsection.

(i) Superheavy or oversize equipment operating under an annual envelope vehicle permit may not exceed:

(I) 12 feet in width;

(II) 14 feet in height;

(III) 110 feet in length; or

(IV) 120,000 pounds gross weight.

(ii) Superheavy or oversize equipment operating under an annual envelope vehicle permit may not transport a load that has more than 25 feet front overhang, or more than 30 feet rear overhang.

(iii) The fee for an annual envelope vehicle permit is $4,000, and is non-refundable.

(iv) The time period will be for one year and will start on the effective date stated on the permit.

(v) This permit authorizes operation of the permitted vehicle only on the state highway system.

(vi) The permitted vehicle must comply with §219.11(d)(2) and (3) of this title.

(vii) The permitted vehicle or vehicle combination must be registered in accordance with Transportation Code, Chapter 502, for maximum weight as set forth by Transportation Code, Chapter 621.

(viii) A permit issued under this paragraph is non-transferable between permittees.

(ix) A permit issued under this paragraph may be transferred from one vehicle to another vehicle in the permittee's fleet provided:

(I) the permitted vehicle is destroyed or otherwise becomes permanently inoperable, to an extent that it will no longer be utilized, and the permittee presents proof that the negotiable certificate of title or other qualifying documentation has been surrendered to the department; or

(II) the certificate of title to the permitted vehicle is transferred to someone other than the permittee, and the permittee presents proof that the negotiable certificate of title or other qualifying documentation has been transferred from the permittee.

(x) A single-trip permit, as described in §219.12 of this title (relating to Single-Trip Permits Issued Under Transportation Code, Chapter 623, Subchapter D), may be used in conjunction with an annual permit issued under this paragraph for the movement of vehicles or loads exceeding the height or width limits established in subparagraph (A) of this paragraph. The department will indicate the annual permit number on any single-trip permit to be used in conjunction with a permit issued under this paragraph, and permittees will be assessed a fee of $60 for the single-trip permit.

(B) The department may issue an annual permit under Transportation Code, §623.071(d), to a specific motor carrier, for the movement of superheavy or oversize equipment that falls within the definition of a nondivisible load. This permit may not be used for a container, including a trailer or an intermodal container, loaded with divisible cargo. Unless otherwise noted, permits issued under this paragraph are subject to the conditions described in paragraph (1) of this subsection and subparagraphs (A)(i)-(viii) of this paragraph. A permit issued under this paragraph may be transferred from one vehicle to another vehicle in the permittee's fleet provided:

(i) that no more than one vehicle is operated at a time; and

(ii) the original certified permit is carried in the vehicle that is being operated under the terms of the permit.

(C) An annual envelope permit issued under subparagraph (B) of this paragraph will be sent to the permittee via registered mail, or at the permittee's request and expense overnight delivery service. This permit may not be duplicated. This permit will be replaced only if:

(i) the permittee did not receive the original permit within seven business days after its date of issuance;

(ii) a request for replacement is submitted to the department within 10 business days after the original permit's date of issuance; and

(iii) the request for replacement is accompanied by a notarized statement signed by a principle or officer of the permittee acknowledging that the permittee understands the permit may not be duplicated and that if the original permit is located, the permittee must return either the original or replacement permit to the department.

(D) A request for replacement of a permit issued under subparagraph (B) of this paragraph will be denied if the department can verify that the permittee received the original.

(E) Lost, misplaced, damaged, destroyed, or otherwise unusable permits will not be replaced. A new permit will be required.

(5) Annual manufactured housing permit. The department may issue an annual permit for the transportation of new manufactured homes from a manufacturing facility to a temporary storage location, not to exceed 20 miles from the point of manufacture, in accordance with Transportation Code, §623.094. Permits issued under this paragraph are subject to the requirements of paragraph (1), subparagraphs (A), (B), (C), (D), (E), and (G), of this subsection.

(A) A permit shall contain the name of the company or person authorized to be issued permits by Transportation Code, Chapter 623, Subchapter E.

(B) The fee for a permit issued under this paragraph is $1,500. Fees are non-refundable, and shall be paid in accordance with §219.11(f) of this title.

(C) The time period will be for one year from the effective date stated on the permit.

(D) The permitted vehicle must travel in the outside traffic lane on multi-lane highways when the width of the load exceeds 12 feet.

(E) The permitted vehicle must be registered in accordance with Transportation Code, Chapter 502.

(F) Authorized movement for a vehicle permitted under this section shall be valid during daylight hours only as defined by Transportation Code, §541.401.

(G) The permitted vehicle must be operated in accordance with the escort requirements described in §219.14(f) of this title (relating to Manufactured Housing, and Industrialized Housing and Building Permits).

(H) Permits issued under this section are non-transferable between permittees.

(6) Power line poles. An annual permit will be issued under Transportation Code, Chapter 622, Subchapter E, for the movement of poles required for the maintenance of electric power transmission and distribution lines. Permits issued under this paragraph are subject to the conditions described in paragraph (1) of this subsection.

(A) The fee for the permit is $120.

(B) The time period will be for one year and will start on the effective date stated on the permit.

(C) The maximum length of the permitted vehicle may not exceed 75 feet.

(D) The width, height and gross weight of the permitted vehicle may not exceed the limits set forth by Transportation Code, Chapter 621.

(E) Vehicles permitted under this paragraph may not travel over a load restricted bridge or load zoned road when exceeding posted limits.

(F) The permitted vehicle must be registered in accordance with Transportation Code, Chapter 502, for maximum weight as set forth by Transportation Code, Chapter 621.

(G) Movement will be between the hours of sunrise and sunset; however, the limitation on hours of operation does not apply to a vehicle being operated to prevent interruption or impairment of electric service, or to restore electric service that has been interrupted. When operated at night, a vehicle permitted under this subsection must be accompanied by a rear escort vehicle.

(H) The permitted vehicle may not travel during hazardous road conditions as stated in §219.11(l)(1)(A) and (B) of this title except to prevent interruption or impairment of electric service, or to restore electric service that has been interrupted.

(I) The speed of the permitted vehicle may not exceed 50 miles per hour.

(J) The permitted vehicle must display on the extreme end of the load:

(i) two red lamps visible at a distance of at least 500 feet from the rear;

(ii) two red reflectors that indicate the maximum width and are visible, when light is insufficient or atmospheric conditions are unfavorable, at all distances from 100 to 600 feet from the rear when directly in front of lawful lower beams of headlamps; and

(iii) two red lamps, one on each side, that indicate the maximum overhang, and are visible at a distance of at least 500 feet from the side of the vehicle.

(7) Cylindrically shaped bales of hay. An annual permit may be issued under Transportation Code, §623.017, for the movement of vehicles transporting cylindrically shaped bales of hay. Permits issued under this paragraph are subject to the conditions described in paragraph (1) of this subsection.

(A) The permit fee is $10.

(B) The time period will be for one year, and will start on the effective date stated on the permit.

(C) The maximum width of the permitted vehicle may not exceed 12 feet.

(D) The length, height, and gross weight of the permitted vehicle may not exceed the limits set forth by Transportation Code, Chapter 621.

(E) Movement is restricted to daylight hours only.

(F) The permitted vehicle must be registered in accordance with Transportation Code, Chapter 502, for maximum weight, as set forth by Transportation Code, Chapter 621.

(8) Overlength load or vehicles. An annual overlength permit may be issued for the transportation of a nondivisible overlength load or the movement of a nondivisible overlength vehicle or combination of vehicles under Transportation Code, §623.071(c-1). This permit is subject to the portions of subsections (a), (b), and (d) of this section that are not limited to the fee or duration for the 30, 60, and 90 day permits.

§219.14.Manufactured Housing, and Industrialized Housing and Building Permits.

(a) General information.

(1) A manufactured home that exceeds size limits for motor vehicles as defined by Transportation Code, Chapter 621, Subchapters B and C, must obtain a permit from the department.

(2) Pursuant to Transportation Code, Chapter 623, Subchapter E, a permit may be issued to persons registered as manufacturers, installers, or retailers with the Texas Department of Housing and Community Affairs or motor carriers registered with the department under Transportation Code, Chapter 643.

(3) The department may issue a permit to the owner of a manufactured home provided that:

(A) the same owner is named on the title of the manufactured home and towing vehicle;

(B) or the owner presents a lease showing that the owner of the manufactured home is the lessee of the towing vehicle.

(b) Application for permit.

(1) The applicant must complete the application and shall include the manufactured home's HUD label number, Texas seal number, or the complete identification number or serial number of the manufactured home, and the overall width, height, and length of the home and the towing vehicle in combination. If the manufactured home is being moved to or from a site in this state where it has been, or will be, occupied as a dwelling, the permit must also show the name of the owner of the home, the location from which the home is being moved, and the location to which the home is being delivered.

(2) A permit application for industrialized housing or industrialized building that does not meet the definition in Occupations Code, §1202.002 and §1202.003 shall be submitted in accordance with §219.11(c) of this title (relating to General Oversize/Overweight Permit Requirements and Procedures).

(c) Amendments to permit. Amendments can only be made to change intermediate points between the origination and destination points listed on the permit.

(d) Payment of permit fee. The cost of the permit is $40, payable in accordance with §219.11(f) of this title.

(e) Permit provisions and conditions.

(1) The overall combined length of the manufactured home and the towing vehicle includes the length of the hitch or towing device.

(2) The height is measured from the roadbed to the highest elevation of the manufactured home.

(3) The width of a manufactured home includes any roof or eaves extension or overhang on either side.

(4) A permit will be issued for a single continuous movement not to exceed five days.

(5) Movement must be made during daylight hours only and may be made on any day except New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.

(6) The department may limit the hours for travel on certain routes because of heavy traffic conditions.

(7) The department will publish any limitations on movements during the national holidays listed in this subsection, or any limitations during certain hours of heavy traffic conditions, and will make such publications available to the public prior to the limitations becoming effective.

(8) The permit will contain the route for the transportation of the manufactured home from the point of origin to the point of destination.

(9) The route for the transportation must be the most practical route as described in §219.11(e) of this title, except where construction is in progress and the permitted vehicle's dimensions exceed the construction restrictions as published by the department, or where bridge or overpass width or height would create a safety hazard.

(10) The department will publish annually a map or list of all bridges or overpasses which, due to height or width, require an escort flag vehicle to stop oncoming traffic while the manufactured home crosses the bridge or overpass.

(11) A permittee may not transport a manufactured home with a void permit; a new permit must be obtained.

(f) Escort requirements.

(1) A manufactured home exceeding 12 feet in width must have a rotating amber beacon of not less than eight inches in diameter mounted somewhere on the roof at the rear of the manufactured home, or may have two five-inch flashing amber lights mounted approximately six feet from ground level at the rear corners of the manufactured home. The towing vehicle must have one rotating amber beacon of not less than eight inches in diameter mounted on top of the cab. These beacons or flashing lights must be operational and luminiferous during any permitted move over the highways, roads, and streets of this state.

(2) A manufactured home with a width exceeding 16 feet but not exceeding 18 feet must have a front escort flag vehicle on two-lane roadways and a rear escort flag vehicle on roadways of four or more lanes.

(3) A manufactured home exceeding 18 feet in width must have a front and a rear escort vehicle on all roadways at all times.

(4) The escort flag vehicle must:

(A) have one red 16 inch square flag mounted on each of the four corners of the vehicle;

(B) have a sign mounted on the front and rear of the vehicle displaying the words "WIDE LOAD" in black letters at least eight inches high with a brush stroke at least 1.41 inches wide against a yellow background;

(C) have [an amber light or lights, visible from both front and rear,] mounted on top of the vehicle and visible from both the front and rear [in one of the following configurations]:

(i) two simultaneously flashing lights; [or]

(ii) one rotating amber beacon of not less than eight inches in diameter; or

(iii) alternating or flashing blue and amber lights; and

(D) maintain two-way communications with the permitted vehicle and other escort flag vehicles involved with the movement of the permitted vehicle.

(5) Two transportable sections of a multi-section manufactured home, or two single section manufactured homes, when towed together in convoy, may be considered one home for purposes of the escort flag vehicle requirements, provided the distance between the two units does not exceed 1,000 feet.

(6) An escort flag vehicle must comply with the requirements in §219.11(k)(1) and §219.11(k)(7)(A) of this title.

§219.15.Portable Building Unit Permits.

(a) General information.

(1) A vehicle or vehicle combination transporting one or more portable building units and portable building compatible cargo that exceed legal length or width limits set forth by Transportation Code, Chapter 621, Subchapters B and C, may obtain a permit under Transportation Code, Chapter 623, Subchapter F.

(2) In addition to the fee required by subsection (d), the department shall collect an amount equal to any fee that would apply to the movement of cargo exceeding any applicable width limits, if such cargo were moved in a manner not governed by this section.

(b) Application for permit. Applications shall be made in accordance with §219.11(c) of this title (relating to General Oversize/Overweight Permit Requirements and Procedures).

(c) Permit issuance. Permit issuance is subject to the requirements of §219.11(b)(2),(e) and (g) of this title.

(d) Payment of permit fee. The cost of the permit is $15, with all fees payable in accordance with §219.11(f) of this title. All fees are non-refundable.

(e) Permit provisions and conditions.

(1) A portable building unit may only be issued a single-trip permit.

(2) Portable building units may be loaded end-to-end to create an overlength permit load, provided the overall length does not exceed 80 feet.

(3) Portable building units must not be loaded side-by-side to create an overwidth load, or loaded one on top of another to create an overheight load.

(4) Portable building units must be loaded in a manner that will create the narrowest width for permit purposes and provide for greater safety to the traveling public.

(5) The permit will be issued for a single continuous movement from the origin to the destination for an amount of time necessary to make the move, not to exceed 10 consecutive days.

(6) Movement of the permitted vehicle must be made during daylight hours only.

(7) A permittee may not transport portable building units or portable building compatible cargo with a void permit; a new permit must be obtained.

(f) Escort requirements.

(1) A portable building unit or portable building compatible cargo with a width exceeding 16 feet but not exceeding 18 feet must have a front escort flag vehicle on two-lane roadways and a rear escort flag vehicle on roadways of four or more lanes.

(2) A portable building unit or portable building compatible cargo exceeding 18 feet in width must have a front and a rear escort flag vehicle on all roadways at all times.

(3) The escort flag vehicle must:

(A) have one red 16 inch square flag mounted on each of the four corners of the vehicle;

(B) have a sign mounted on the front and rear of the vehicle displaying the words "WIDE LOAD" in black letters at least eight inches high with a brush stroke at least 1.41 inches wide against a yellow background;

(C) have [an amber light or lights, visible from both front and rear,] mounted on top of the vehicle and visible from both front and rear, [and which must be] two simultaneously flashing lights, [or] one rotating amber beacon of not less than eight inches in diameter, or alternating or flashing blue and amber lights; and

(D) maintain two-way communications with the permitted vehicle and other escort flag vehicles involved with the movement of the permitted vehicle.

(4) An escort flag vehicle must comply with the requirements in §219.11(k)(1) and §219.11(k)(7)(A) of this title.

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 7, 2020.

TRD-202003205

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


SUBCHAPTER D. PERMITS FOR OVERSIZE AND OVERWEIGHT OIL WELL RELATED VEHICLES

43 TAC §219.42, §219.43

STATUTORY AUTHORITY. The department proposes amendments under Transportation Code §§623.002, 1001.009, and 1002.001.

- Transportation Code §632.002 authorizes the board of the Texas Department of Motor Vehicles (board) to adopt rules as necessary to implement Transportation Code Chapter 623.

- Transportation Code §1001.009 authorizes the board to adopt rules regarding the method of collection of a fee for any goods or services provided by the department.

- Transportation Code §1002.001 authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department under the Transportation Code.

CROSS REFERENCE TO STATUTE. Transportation Code §547.305, Chapter 621, and Chapter 623.

§219.42.Single-Trip Mileage Permits.

(a) General information.

(1) Permits issued under this section are subject to the requirements of §219.41 of this title (relating to General Requirements).

(2) A single-trip mileage permit:

(A) is limited to a maximum of seven consecutive days;

(B) routes the vehicle from the point of origin to the point of destination and has the route listed on the permit; and

(C) allows the unit to be returned to the point of origin on the same permit, provided the return trip is made within the time period stated in the permit.

(3) A unit exceeding 175,000 pounds gross weight must:

(A) have front and rear escort flag vehicles to prevent traffic from traveling beside the unit as it crosses a bridge;

(B) cross all multi-lane bridges by centering the unit on a lane line;

(C) cross all two-lane bridges in the center of the bridge; and

(D) cross each bridge at a speed not greater than 20 miles per hour.

(4) A unit exceeding 12 feet in width must be centered in the outside traffic lane of any highway that has paved shoulders.

(b) Maximum permit weight limits.

(1) The maximum permit weight for any single axle must not exceed 30,000 pounds or 850 pounds per inch of tire width, whichever is less.

(2) The maximum permit weight for any group of axles on a unit will be determined by calculating the "W" weight for the group, using the formulas shown in Figure 2: 43 TAC §219.42(f), titled "Maximum Permit Weight Formulas," and comparing the calculated "W" weight with the corresponding "W" weight that is established in Figure 1: 43 TAC §219.42(f), titled "Maximum Permit Weight Table."

(3) The maximum permit weight per inch of tire width for axles that are steerable must not exceed 950 pounds, and the maximum permit weight per inch of tire width for axles that are not steerable must not exceed 850 pounds.

(4) A unit that does not have any group of axles that exceeds the limits established in Figure 1: 43 TAC §219.42(f), "Maximum Permit Weight Table," and Figure 2: 43 TAC §219.42(f), "Maximum Permit Weight Formulas" will be permitted with a single-trip mileage or quarterly hubometer permit for travel on any route that does not include a load restricted bridge.

(5) A unit that has any group of axles that exceeds the limits established by Figure 1: 43 TAC §219.42(f), "Maximum Permit Weight Table," and Figure 2: 43 TAC §219.42(f), "Maximum Permit Weight Formulas" will be eligible, on an individual case-by-case basis, for a single-trip mileage permit only; permit approval or denial will be based on a detailed route study and an analysis conducted by TxDOT of each bridge on the proposed travel route to determine if the road(s) and bridge(s) are capable of sustaining the movement.

(6) A road or bridge that has been analyzed and determined to be incapable of sustaining the unit will be excluded from the permit route.

(c) Permit application and issuance.

(1) An application for a single-trip mileage permit under this section must be made in accordance with §219.41(b) of this title and shall also include the origin and destination points of the unit.

(2) Upon receipt of the application, the department will review and verify unit size and weight information, check route and mileage to be traveled, compute the permit fee, and advise the applicant of the permit fee.

(3) Upon receipt of the permit fee, the department will advise the applicant of the permit number, and will provide a copy of the permit to the applicant.

(d) Permit fees and refunds.

(1) Minimum fee. The minimum fee for a single-trip mileage permit is either the calculated permit fee or $31, whichever is the greater amount.

(2) Permit fee calculation. The fee for a single-trip mileage permit is calculated by multiplying the number of miles traveled, the highway use factor, and the total rate per mile, and then adding the indirect cost share to the product.

(A) Highway use factor. The highway use factor for a single trip mileage permit is 0.6.

(B) Total rate per mile. The total rate per mile is the combined mileage rates for width, height, and weight for the unit. For a trailer mounted unit, the total rate per mile is based on the overall width, overall height, and all axle weights, including the truck-tractor axles.

(i) The mileage rate for width is $.06 per mile for each foot (or fraction thereof) above legal width.

(ii) The mileage rate for height is $.04 per mile for each foot (or fraction thereof) above legal height.

(iii) The mileage rate for a single axle or any axle within a group that exceeds 20,000 pounds, but is less than or equal to 25,000 pounds, is calculated by multiplying $.045 times the amount by which the axle or axle group weight exceeds the legal weight for the axle or axle group and dividing the resultant figure by 1,000 pounds.

(iv) The mileage rate for a single axle or any axle within a group that exceeds 25,000 pounds, but is less than or equal to 30,000 pounds, is calculated by multiplying $.055 times the amount by which the axle or axle group weight exceeds the legal weight for the axle or axle group and dividing the resultant figure by 1,000 pounds.

(3) Permit fees for trailer mounted units.

(A) The permit fee for a trailer mounted unit is based on the overall width, overall height, and all axle weights, including the truck-tractor axles.

(B) A unit with two or more axle groups that do not have a spacing of at least 12 feet between the closest axles of the opposing groups must have the permit fee calculated by the following method.

(i) The axle group with the lowest weight will have the axle closest to the next axle group temporarily disregarded from its group in order to create a spacing of at least 12 feet between the two groups for fee calculation purposes.

(ii) An axle group will not have more than one axle disregarded.

(iii) The permit fee for the axle group with the temporarily disregarded axle must be based on the actual weight of the entire axle group minus the legal weight for the remaining axles of the group.

(4) Refunds. Fees for permits issued under this section are non-refundable.

(e) Amendments. A single-trip mileage permit may not be amended unless an exception is granted by the department.

(f) Weight table and formulas. The following table entitled "Maximum Permit Weight Table" is Figure 1: 43 TAC §219.42(f), and the list of formulas entitled, "Maximum Permit Weight Formulas," is Figure 2: 43 TAC §219.42(f).

Figure 1: 43 TAC §219.42(f) (No Change.)

Figure 2: 43 TAC §219.42(f) (No Change.)

§219.43.Quarterly Hubometer Permits.

(a) General information.

(1) Permits issued under this section are subject to the requirements of §219.41 of this title (relating to General Requirements).

(2) A quarterly hubometer permit:

(A) is effective for three consecutive months;

(B) allows the unit to travel on all state-maintained highways; and

(C) allows the unit to travel on a state-wide basis.

(3) A unit permitted under this subsection must not exceed any of the following dimensions:

(A) 12 feet in width;

(B) 14 feet, 6 inches in height; and

(C) 95 feet in length.

(4) With the exception of units that are overlength only, a unit operated with a permit issued under this section must be equipped with a hubometer. The permittee must maintain the hubometer in good working condition.

(5) A unit exceeding 175,000 pounds gross weight must:

(A) have front and rear escort flag vehicles to prevent traffic from traveling beside the unit as it crosses a bridge;

(B) cross all multi-lane bridges by centering the unit on a lane line;

(C) cross all two-lane bridges in the center of the bridge; and

(D) cross each bridge at a speed not greater than 20 miles per hour.

(b) Maximum permit weight limits.

(1) The maximum permit weight for any single axle must not exceed 30,000 pounds or 850 pounds per inch of tire width, whichever is less.

(2) The maximum permit weight for any group of axles on a unit will be determined by calculating the "W" weight for the group, using the formulas in Figure 2: 43 TAC §219.42(f), "Maximum Permit Weight Formulas," and comparing the calculated "W" weight with the corresponding "W" weight that is established in Figure 1: 43 TAC §219.42(f), "Maximum Permit Weight Table."

(3) The maximum permit weight per inch of tire width for axles that are steerable must not exceed 950 pounds, and the maximum permit weight per inch of tire width for axles that are not steerable must not exceed 850 pounds.

(4) A unit that does not have any group of axles that exceeds the limits established in Figure 1: 43 TAC §219.42(f), "Maximum Permit Weight Table," and Figure 2: 43 TAC §219.42(f), "Maximum Permit Weight Formulas" will be permitted with a single-trip mileage or quarterly hubometer permit for travel on any route that does not include a load restricted bridge.

(5) A unit that has any group of axles that exceeds the limits established by Figure 1: 43 TAC §219.42(f), "Maximum Permit Weight Table," and Figure 2: 43 TAC §219.42(f), "Maximum Permit Weight Formulas" will be eligible, on an individual case-by-case basis, for a single-trip mileage permit only; permit approval or denial will be based on a detailed route study and an analysis conducted by TxDOT of each bridge on the proposed travel route to determine if the road(s) and bridge(s) are capable of sustaining the movement.

(6) A bridge that has been analyzed and determined to be incapable of sustaining the unit will be excluded from the permit route.

(c) Initial permit application and issuance.

(1) An application for an initial quarterly hubometer permit under this section must be made in accordance with §219.41(b) of this title. In addition, the applicant must provide the current hubometer mileage reading and an initial $31 processing fee.

(2) Upon verification of the unit information and receipt of the permit fee, the department will provide a copy of the permit to the applicant, as well as a renewal application.

(d) Permit renewals and closeouts.

(1) An application for a permit renewal or closeout must be made on a form and in the manner prescribed by the department.

(2) Upon receipt of the renewal application, the department will verify unit information, check mileage traveled on the last permit, calculate the new permit fee, and advise the applicant of the permit fee.

(e) Permit fees.

(1) Minimum fee. The minimum fee for a quarterly hubometer permit is either the calculated permit fee or $31, whichever is the greater amount.

(2) Fees for overlength units. A unit that is overlength only must obtain a quarterly hubometer permit with a fee of $31, but is not required to have a hubometer.

(3) Quarterly hubometer permit fee calculation. The permit fee for a quarterly hubometer permit is calculated by multiplying the hubometer mileage, the highway use factor, and the total rate per mile, and then adding the indirect cost share to the product.

(A) Hubometer mileage. Mileage for a quarterly hubometer permit is determined by the unit's current hubometer mileage reading minus the unit's hubometer mileage reading from the previous quarterly hubometer permit.

(B) Highway use factor. The highway use factor for a quarterly hubometer permit is 0.3.

(C) Total rate per mile. The total rate per mile is the combined mileage rates for width, height, and weight for the unit. The rate per mile for a trailer mounted unit is based on the overall width, overall height, and all axle weights, including the truck-tractor axles.

(i) The mileage rate for width is $.06 per mile for each foot (or fraction thereof) above legal width.

(ii) The mileage rate for height is $.04 per mile for each foot (or fraction thereof) above legal height.

(iii) The mileage rate for a single axle or any axle within a group that exceeds 20,000 pounds, but is less than or equal to 25,000 pounds, is calculated by multiplying $.045 times the amount by which the axle or axle group weight exceeds the legal weight for the axle or axle group and dividing the resultant figure by 1,000 pounds.

(iv) The mileage rate for a single axle or any axle within a group that exceeds 25,000 pounds, but is less than or equal to 30,000 pounds, is calculated by multiplying $.055 times the amount by which the axle or axle group weight exceeds the legal weight for the axle or axle group and dividing the resultant figure by 1,000 pounds.

(4) Permit fees for trailer mounted units.

(A) The permit fee for a trailer mounted unit is based on the overall width, overall height, and all axle weights, including the truck-tractor axles.

(B) A unit with two or more axle groups that does not have a spacing of at least 12 feet between the closest axles of the opposing groups must have the permit fee calculated by the following method.

(i) The axle group with the lowest weight will have the axle closest to the next axle group temporarily disregarded from its group in order to create a spacing of at least 12 feet between the two groups for fee calculation purposes.

(ii) An axle group will not have more than one axle disregarded.

(iii) The permit fee for the axle group with the temporarily disregarded axle must be based on the actual weight of the entire axle group minus the legal weight for the remaining axles of the group.

(f) Amendments. A quarterly hubometer permit may be amended only to indicate:

(1) a new hubometer serial number; or

(2) a new license plate number.

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 7, 2020.

TRD-202003206

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


SUBCHAPTER E. PERMITS FOR OVERSIZE AND OVERWEIGHT UNLADEN LIFT EQUIPMENT MOTOR VEHICLES

43 TAC §§219.61 - 219.63

STATUTORY AUTHORITY. The department proposes amendments under Transportation Code §§623.002, 1001.009, and 1002.001.

- Transportation Code §632.002 authorizes the board of the Texas Department of Motor Vehicles (board) to adopt rules as necessary to implement Transportation Code Chapter 623.

- Transportation Code §1001.009 authorizes the board to adopt rules regarding the method of collection of a fee for any goods or services provided by the department.

- Transportation Code §1002.001 authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department under the Transportation Code.

CROSS REFERENCE TO STATUTE. Transportation Code §547.305, Chapter 621, and Chapter 623.

§219.61.General Requirements for Permits for Oversize and Overweight Unladen Lift Equipment Motor Vehicles.

(a) General information.

(1) Unless otherwise noted, permits issued under this subchapter are subject to the requirements of this section.

(2) Cranes are eligible for an annual permit under this subchapter.

(3) Cranes are also eligible for the following permits under this subchapter at weights above those established by §219.11(d)(2) of this title (relating to General Oversize/Overweight Permit Requirements and Procedures):

(A) single-trip mileage permits; and

(B) quarterly hubometer permits.

(4) If a truck-tractor is used to transport a trailer-mounted crane, the combination of vehicles is limited to the dimensions and weights listed in this subchapter.

(b) Permit application. An application shall be made on a form and in a manner prescribed by the department. The applicant shall provide all applicable information, including:

(1) name, address, telephone number, and email address (if requested) of the applicant;

(2) year and make of the crane;

(3) vehicle identification number of the crane;

(4) width, height, and length of the crane;

(5) crane axle and tire information, including the number of axles, distance between axles, gauge per axle, axle weights, number of tires, and tire size; and

(6) any other information required by law.

(c) Payment of permit fees. Fees for permits issued under this subchapter are payable as described in §219.11(f) of this title.

(d) Restrictions.

(1) A crane permitted under this subchapter is subject to the restrictions specified in §219.11(l)(1), (3), and (4) of this title, and the permittee is responsible for obtaining information concerning current restrictions from the department.

(2) A crane permitted under this subchapter may travel through highway construction or maintenance areas provided the dimensions do not exceed the construction restrictions as published by the department.

(3) A crane permitted under this subchapter may only be operated during daylight, unless:

(A) the crane is overweight only; or

(B) the crane complies with one of the following, regardless of whether the crane is overweight:

(i) the crane does not exceed nine feet in width, 14 feet in height, or 65 feet in length; or

(ii) the crane is accompanied by a front and rear escort flag vehicle and does not exceed:

(I) 10 feet, 6 inches in width;

(II) 14 feet in height; or

(III) 95 feet in length.

(e) Transferability. Unless otherwise noted, a permit issued under this subchapter may not be transferred between cranes or between permittees.

(f) Escort requirements. In addition to any other escort requirements specified in this subchapter, cranes permitted under this subchapter are subject to the escort requirements specified in §219.11(k) of this title.

(g) Properly secured equipment. A crane permitted under this subchapter may travel with properly secured equipment, such as outriggers, booms, counterweights, jibs, blocks, balls, cribbing, outrigger pads, and outrigger mats, in accordance with the manufacturer's specifications to the extent the equipment is necessary for the crane to perform its intended function, provided the axle weights, axle group weights, and gross weight do not exceed the maximum permit weights listed in this subchapter.

§219.62.Single Trip Mileage Permits.

(a) General information.

(1) Permits issued under this section are subject to the requirements of §219.61 of this title (relating to General Requirements for Permits for Oversize and Overweight Unladen Lift Equipment Motor Vehicles).

(2) A single-trip mileage permit:

(A) is limited to a maximum of seven consecutive days;

(B) is routed from the point of origin to the point of destination and has the route listed on the permit; and

(C) allows the crane to be returned to the point of origin on the same permit, provided the return trip is made within the time period stated in the permit.

(3) A crane exceeding 175,000 pounds gross weight must:

(A) have front and rear escort flag vehicles to prevent traffic from traveling beside the crane as it crosses a bridge;

(B) cross all multi-lane bridges by centering the crane on a lane line;

(C) cross all two-lane bridges in the center of the bridge; and

(D) cross each bridge at a speed not greater than 20 miles per hour.

(4) A crane exceeding 12 feet in width must be centered in the outside traffic lane of any highway that has paved shoulders.

(5) Except as otherwise provided in this section, the permitted crane must not cross a load-restricted bridge when exceeding the posted capacity of the bridge.

(b) Maximum permit weight limits.

(1) The maximum permit weight for any single axle must not exceed 30,000 pounds or 850 pounds per inch of tire width, whichever is less.

(2) The maximum permit weight for any group of axles on a crane is determined by calculating the "W" weight for the group, using the formulas shown in Figure 2: 43 TAC §219.62(f), "Maximum Permit Weight Formulas," and comparing the calculated "W" weight with the corresponding "W" weight that is established in Figure 1:43 TAC §219.62(f), "Maximum Permit Weight Table."

(3) The maximum permit weight per inch of tire width for axles that are steerable must not exceed 950 pounds, and the maximum permit weight per inch of tire width for axles that are not steerable must not exceed 850 pounds.

(4) An applicant with a crane that has any group of axles that exceeds the limits established by Figure 1: 43 TAC §219.62(f),"Maximum Permit Weight Table," and Figure 2: 43 TAC §219.62(f), "Maximum Permit Weight Formulas," must comply with the following process and requirements:

(A) submit the following to the department to determine if a permit can be issued:

(i) a detailed diagram, on a form prescribed by the department, which illustrates the required information listed in §219.61(b)(5) of this title;

(ii) the exact beginning and ending points relative to a state highway; and

(iii) the name and contact information of the applicant's TxDOT-approved licensed professional engineer.

(B) The department will select and provide the applicant with a tentative route based on the size of the crane, excluding the weight. The applicant must inspect the tentative route and advise the department, in writing, that the route is capable of accommodating the crane.

(C) Before the department will issue a permit, the applicant's TxDOT-approved licensed professional engineer must submit to TxDOT a written certification that includes a detailed structural analysis of the bridges on the proposed route demonstrating that the bridges and culverts on the travel route are capable of sustaining the crane. The certification must be approved by TxDOT and submitted to the department before the department will issue the permit.

(c) Permit application and issuance.

(1) An application for a single-trip mileage permit under this section must be made in accordance with §219.61(b) of this title and must also include the origin and destination points of the crane.

(2) Upon receipt of the application, the department will review and verify size and weight information, check the route and mileage to be traveled, compute the permit fee, and advise the applicant of the permit fee.

(3) Upon receipt of the permit fee, the department will advise the applicant of the permit number and will provide a copy of the permit to the applicant.

(d) Permit fees and refunds.

(1) Minimum fee. The minimum fee for a single-trip mileage permit is either the calculated permit fee or $31, whichever is the greater amount.

(2) Permit fee calculation. The permit fee for a single-trip mileage permit is calculated by multiplying the number of miles traveled, the highway use factor, and the total rate per mile, and then adding the indirect cost share to the product.

(A) Highway use factor. The highway use factor for a single-trip mileage permit is 0.6.

(B) Total rate per mile. The total rate per mile is the combined mileage rates for width, height, and weight for the crane. The rate per mile for a trailer-mounted crane is based on the overall width, overall height, and all axle weights, including the truck-tractor axles.

(i) The mileage rate for width is $.06 per mile for each foot (or fraction thereof) above legal width.

(ii) The mileage rate for height is $.04 per mile for each foot (or fraction thereof) above legal height.

(iii) The mileage rate for a single axle or any axle within a group that exceeds 20,000 pounds, but is less than or equal to 25,000 pounds, is calculated by multiplying $.045 times the amount by which the axle or axle group weight exceeds the legal weight for the axle or axle group and dividing the resultant figure by 1,000 pounds.

(iv) The mileage rate for a single axle or any axle within a group that exceeds 25,000 pounds, but is less than or equal to 30,000 pounds, is calculated by multiplying $.055 times the amount by which the axle or axle group weight exceeds the legal weight for the axle or axle group and dividing the resultant figure by 1,000 pounds.

(3) Exceptions to fee computations. A crane with two or more axle groups that does not have a spacing of at least 12 feet between the closest axles of the opposing groups must have the permit fee calculated by the following method.

(A) The axle group with the lowest weight will have the axle closest to the next axle group temporarily disregarded from its group in order to create a spacing of at least 12 feet between the two groups for fee calculation purposes.

(B) An axle group will not have more than one axle disregarded.

(C) The permit fee for the axle group with the temporarily disregarded axle must be based on the actual weight of the entire axle group minus the legal weight for the remaining axles of the group.

(4) Refunds. Fees for permits issued under this section are non-refundable.

(e) Amendments. A single-trip mileage permit issued under this section may not be amended unless an exception is granted by the department.

(f) Weight table and formulas. The following table entitled "Maximum Permit Weight Table" is Figure 1: 43 TAC §219.62(f), and the list of formulas entitled "Maximum Permit Weight Formulas," is Figure 2: 43 TAC §219.62(f).

Figure 1: 43 TAC §219.62(f) (No Change.)

Figure 2: 43 TAC §219.62(f) (No Change.)

§219.63.Quarterly Hubometer Permits.

(a) General information.

(1) Permits issued under this section are subject to the requirements of §219.61 of this title (relating to General Requirements for Permits for Oversize and Overweight Unladen Lift Equipment Motor Vehicles).

(2) A quarterly hubometer permit:

(A) is effective for three consecutive months;

(B) allows the crane to travel on all state-maintained highways; and

(C) allows the crane to travel on a state-wide basis.

(3) A crane permitted under this section must not exceed any of the following dimensions:

(A) 12 feet in width;

(B) 14 feet, 6 inches in height; or

(C) 95 feet in length.

(4) With the exception of cranes that are overlength only, cranes operated with a quarterly hubometer permit must be equipped with a hubometer. The permittee must maintain the hubometer in good working condition.

(5) A crane exceeding 175,000 pounds gross weight must:

(A) have front and rear escort flag vehicles to prevent traffic from traveling beside the crane as it crosses a bridge;

(B) cross all multi-lane bridges by centering the crane on a lane line;

(C) cross all two-lane bridges in the center of the bridge; and

(D) cross each bridge at a speed not greater than 20 miles per hour.

(6) The permitted crane must not cross a load-restricted bridge when exceeding the posted capacity of the bridge.

(7) The permit may be amended only to indicate:

(A) a new hubometer serial number; or

(B) a new license plate number.

(b) Maximum permit weight limits.

(1) The maximum permit weight for any single axle must not exceed 30,000 pounds or 850 pounds per inch of tire width, whichever is less.

(2) The maximum permit weight for any group of axles on a crane will be determined by calculating the "W" weight for the group, using the formulas in Figure 2: 43 TAC §219.62(f), "Maximum Permit Weight Formulas," and comparing the calculated "W" weight with the corresponding "W" weight that is established in Figure 1 :43 TAC §219.62(f), "Maximum Permit Weight Table."

(3) The maximum permit weight per inch of tire width for axles that are steerable must not exceed 950 pounds, and the maximum permit weight per inch of tire width for axles that are not steerable must not exceed 850 pounds.

(4) A crane that has any group of axles that exceeds the limits established by Figure 1 :43 TAC §219.62(f), "Maximum Permit Weight Table," and Figure 2: 43 TAC §219.62(f), "Maximum Permit Weight Formulas," is not eligible for a permit under this section; however, it is eligible for a permit under §219.62 of this title (relating to Single-Trip Mileage Permits).

(c) Initial permit application and issuance.

(1) An application for an initial quarterly hubometer permit must be made in accordance with §219.61(b) of this title. In addition, the applicant must provide the current hubometer mileage reading and an initial $31 processing fee.

(2) Upon verification of the crane information and receipt of the permit fee, the department will provide a copy of the permit to the applicant, and will also provide a renewal application form to the applicant.

(d) Permit renewals and closeouts.

(1) An application for a permit renewal or closeout must be made on a form and in a manner prescribed by the department.

(2) Upon receipt of the renewal application, the department will verify crane information, check mileage traveled on the last permit, calculate the new permit fee, and advise the applicant of the permit fee.

(e) Permit fees.

(1) Minimum fee. The minimum fee for a quarterly hubometer permit is either the calculated permit fee or $31, whichever is the greater amount.

(2) Fees for overlength cranes. A crane that is overlength only is not required to have a hubometer. The fee for this permit is $31.

(3) Quarterly hubometer permit fee calculation. The permit fee for a quarterly hubometer permit is calculated by multiplying the hubometer mileage, the highway use factor, and the total rate per mile, and then adding the indirect cost share to the product.

(A) Hubometer mileage. Mileage for a quarterly hubometer permit is determined by the crane's current hubometer mileage reading minus the crane's hubometer mileage reading from the previous quarterly hubometer permit.

(B) Highway use factor. The highway use factor for a quarterly hubometer permit is 0.3.

(C) Total rate per mile. The total rate per mile is the combined mileage rates for width, height, and weight for the crane.

(i) The mileage rate for width is $.06 per mile for each foot (or fraction thereof) above legal width.

(ii) The mileage rate for height is $.04 per mile for each foot (or fraction thereof) above legal height.

(iii) The mileage rate for a single axle or any axle within a group that exceeds 20,000 pounds, but is less than or equal to 25,000 pounds, is calculated by multiplying $.045 times the amount by which the axle or axle group weight exceeds the legal weight for the axle or axle group and dividing the resultant figure by 1,000 pounds.

(iv) The mileage rate for a single axle or any axle within a group that exceeds 25,000 pounds, but is less than or equal to 30,000 pounds, is calculated by multiplying $.055 times the amount by which the axle or axle group weight exceeds the legal weight for the axle or axle group and dividing the resultant figure by 1,000 pounds.

(4) Special fee provisions. A crane with two or more axle groups that do not have a spacing of at least 12 feet between the closest axles of the opposing groups must have the permit fee calculated by the following method.

(A) The axle group with the lowest weight will have the axle closest to the next axle group temporarily disregarded from its group in order to create a spacing of at least 12 feet between the two groups for fee calculation purposes.

(B) An axle group will not have more than one axle disregarded.

(C) The permit fee for the axle group with the temporarily disregarded axle must be based on the actual weight of the entire axle group minus the legal weight for the remaining axles of the group.

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 7, 2020.

TRD-202003207

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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 Title 43 TAC §219.31 and §219.126 concerning the movement of oversize or overweight vehicles, including the enforcement of motor vehicle size and weight limitations. The department also proposes the repeal of Title 43 TAC §219.83 concerning shipper's certificates of weight. The amendments are necessary to conform to amendments to Transportation Code §623.272 and §623.321 by House Bill 2620, 86th Legislature, Regular Session (2019). The repeal is necessary because it duplicates language found in Transportation Code §623.271 and §623.274. Also, some of the language in §219.83 is inconsistent with Transportation Code §623.274, which was also amended by House Bill 2620.

EXPLANATION. The proposal amends §219.31(a) to conform with Transportation Code §623.321 by authorizing the current timber permit to be used to transport equipment used to load timber on a vehicle.

The proposal amends §219.126 to conform with Transportation Code §623.272 because it adds that the department may also investigate and impose a fine on a shipper who does not provide a shipper's certificate of weight as required under Transportation Code §623.274(b).

The proposal repeals §219.83 because it duplicates language found in Transportation Code §623.271 and §623.274. Also, some of the language in §219.83 is inconsistent with Transportation Code §623.274.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Linda M. Flores, Chief Financial Officer, has determined that for each year of the first five years the amendments and repeal will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. Jimmy Archer, Director of the Motor Carrier Division, has determined that there will be no measurable effect on local employment or the local economy as a result of the proposal.

PUBLIC BENEFIT AND COST NOTE. Mr. Archer has also determined that, for each year of the first five years the amended and repealed sections are in effect, the public will benefit because the rules will be consistent with current statutes.

Anticipated Costs to Comply With the Proposal. Mr. Archer anticipates that there will be no costs to comply with these rules because the proposed amendments conform to Transportation Code §623.321 and §623.272 and do not create any additional requirement or cost on a regulated person. Also, the repeal duplicates language found in Transportation Code §623.271 and §623.274, and some of the language is inconsistent with Transportation Code §623.274.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. As required by Government Code, §2006.002, the department has determined that the proposed amendments and repeal will not have an adverse economic effect on small businesses, micro-business, and rural communities because the proposal conforms the rules to statute and does not impose any additional requirements or cost on a regulated person. Therefore, the department is not required to prepare a regulatory flexibility analysis under Government Code, §2006.002.

TAKINGS IMPACT ASSESSMENT. The department has determined that no private real property interests are affected by this proposal 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, therefore, does not constitute a taking or require a takings impact assessment under the Government Code, §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT. The department has determined that each year of the first five years the proposed amendments are in effect, the proposed rule:

- will not create or eliminate a government program;

- will not require the creation of new employee positions or the elimination of existing employee positions;

- will not require an increase or decrease in future legislative appropriations to the department;

- will not require an increase or decrease in fees paid to the department;

- will not create new regulations;

- will not expand existing regulations;

- will repeal existing regulations;

- will not increase the number of individuals subject to the rule's applicability; and

- will not positively or adversely affect the Texas economy.

REQUEST FOR PUBLIC COMMENT.

If you want to comment on the proposal, submit your written comments by 5:00 p.m. CDT on September 21, 2020. A request for a public hearing must be sent separately from your written comments. Send written comments or hearing requests by email to rules@txdmv.gov or by mail to Office of General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731. If a hearing is held, the department will consider written comments and public testimony presented at the hearing.

SUBCHAPTER C. PERMITS FOR OVER AXLE AND OVER GROSS WEIGHT TOLERANCES

43 TAC §219.31

STATUTORY AUTHORITY. The department proposes amendments under Transportation Code §623.002, which authorizes the Texas Department of Motor Vehicles Board (board) to adopt rules for the administration of Transportation Code Chapter 623; and Transportation Code §1002.001 which authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department.

CROSS REFERENCE TO STATUTE. Transportation Code §§623.272, 623.274, and 623.321.

§219.31.Timber Permits.

(a) Purpose. This section prescribes the requirements and procedures regarding the annual permit for the operation of a vehicle or combination of vehicles that will be used to transport unrefined timber, wood chips, [or] woody biomass, or equipment used to load timber on a vehicle under the provisions of Transportation Code, Chapter 623, Subchapter Q.

(b) Application for permit.

(1) To qualify for a timber permit, a person must submit an application to the department.

(2) The application shall be in a form prescribed by the department and at a minimum, will require the following:

(A) name, address, telephone number, and email address (if requested) of the applicant;

(B) name of contact person and telephone number or email address;

(C) vehicle information, including vehicle year, make, license plate number and state of issuance, and vehicle identification number; and

(D) a list of timber producing counties described in Transportation Code, §623.321(a), in which the vehicle or combination of vehicles will be operated.

(3) The application shall be accompanied by:

(A) the total annual permit fee required by statute; and

(B) a blanket bond or irrevocable letter of credit as required by Transportation Code, §623.012, unless the applicant has a current blanket bond or irrevocable letter of credit on file with the department that complies with Transportation Code, §623.012.

(4) Fees for permits issued under this section are payable as required by §219.11(f) of this title (relating to General Oversize/Overweight Permit Requirements and Procedures).

(c) Issuance and placement of permit and windshield sticker; restrictions.

(1) A permit and a windshield sticker will be issued once the application is approved, and each will be mailed to the applicant at the address contained in the application.

(2) The windshield sticker shall be affixed to the inside of the windshield of the vehicle in accordance with the diagram printed on the back of the sticker and in a manner that will not obstruct the vision of the driver. Any attempt to remove the sticker from the windshield will render the sticker void and will require a new permit and sticker.

(3) A replacement sticker for a lost, stolen, or mutilated windshield sticker may be issued, provided that the permittee submits a request on a form approved by the department which shall include a statement, signed by the permittee, affirming that the sticker was lost, stolen, or mutilated. The replacement sticker shall only be valid for the permitted vehicle.

(d) Notification. The financially responsible party as defined in Transportation Code, §623.323(a), shall electronically file the notification document described by §623.323(b) with the department via the form on the department's website.

(e) Transfer of permit. An annual permit issued under this section is not transferable between vehicles.

(f) Amendments. An annual permit issued under this section will not be amended except in the case of department error.

(g) Termination of permit. An annual permit issued under this section will automatically terminate, and the windshield sticker must be removed from the vehicle:

(1) on the expiration of the permit;

(2) when the lease of the vehicle expires;

(3) on the sale or other transfer of ownership of the vehicle for which the permit was issued;

(4) on the dissolution or termination of the partnership, corporation, or other legal entity to which the permit was issued; or

(5) if the permittee fails to timely replenish the bond or letter of credit as required by Transportation Code, §623.012.

(h) Restrictions. Permits issued under this section are subject to the restrictions in §219.11(l) of this title.

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 7, 2020.

TRD-202003221

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


SUBCHAPTER F. COMPLIANCE

43 TAC §219.83

STATUTORY AUTHORITY. The department proposes this repeal under Transportation Code §623.002, which authorizes the Texas Department of Motor Vehicles Board (board) to adopt rules for the administration of Transportation Code Chapter 623; and Transportation Code §1002.001 which authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department.

CROSS REFERENCE TO STATUTE. Transportation Code §§623.272, 623.274, and 623.321

§219.83.Shipper Certificate of Weight.

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 7, 2020.

TRD-202003218

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


SUBCHAPTER H. ENFORCEMENT

43 TAC §219.126

STATUTORY AUTHORITY. The department proposes amendments under Transportation Code §623.002, which authorizes the Texas Department of Motor Vehicles Board (board) to adopt rules for the administration of Transportation Code Chapter 623; and Transportation Code §1002.001 which authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department.

CROSS REFERENCE TO STATUTE. Transportation Code §§623.272, 623.274, and 623.321

§219.126.Administrative Penalty for False Information on Certificate by a Shipper.

(a) The department may investigate and impose an administrative penalty on a shipper who does not provide a shipper's certificate of weight as required under Transportation Code §623.274(b) or provides false information on a shipper's certificate of weight that the shipper delivers to a person transporting a shipment.

(b) The notice and hearing requirements of §219.124 of this title (relating to Administrative Proceedings) apply to the imposition of an administrative penalty under this section.

(c) The amount of an administrative penalty imposed under this section is calculated in the same manner as the amount of an administrative penalty imposed under §219.121 of this title (relating to Administrative Penalties).

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 7, 2020.

TRD-202003220

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


CHAPTER 221. SALVAGE VEHICLE DEALERS

SUBCHAPTER E. ADMINISTRATIVE PROCEDURES

43 TAC §221.96

INTRODUCTION. The Texas Department of Motor Vehicles (department) proposes to add Title 43 of the Texas Administrative Code (TAC) §221.96 concerning cease and desist orders. The proposed new section implements Senate Bill 604, 86th Legislature, Regular Session (2019), which amended Occupations Code Chapter 2302 by adding §2302.055 authorizing the department's board (board) to issue cease and desist orders under the chapter.

EXPLANATION. Proposed new §221.96 permits the board to issue cease and desist orders if it appears that a violation of Occupations Code Chapter 2302, the department's rules, or an order from the department under Occupations Code Chapter 2302 is occurring. Proposed new §221.96(a) clarifies that a cease and desist order may only be issued if the board reasonably believes a person who is not licensed under Occupations Code Chapter 2302 is violating that chapter or a rule or order adopted under that chapter. Proposed new §221.96(a) is necessary to clarify that license holders under Occupations Code Chapter 2302 cannot be issued a cease and desist order and corresponds to the language in Occupations Code §2302.055. License holders under Occupations Code Chapter 2302 include a general distinguishing number holder acting under Occupations Code §2302.009.

Proposed new §221.96(b) permits the board to require a person to cease and desist from committing a violation or from engaging in any practice regulated by the board as necessary to prevent the violation and requires that the order contain a notice that a request for a hearing may be filed. Proposed new §221.96(b) is necessary to outline what actions the board can require or prohibit using a cease and desist order. Proposed new §221.96(b) also ensures that notice of an opportunity for hearing is given.

Proposed new §221.96(c) permits a person to whom a cease and desist order is issued to file a written request for a hearing before the board not later than the 10th day after the date of receipt of the order. The written request for a hearing may be filed with the department electronically, through the mail, or in person. The request may be in any written form, but should state that a hearing is requested. Proposed new §221.96(c) clarifies that the order is final unless a request for hearing is timely filed. Proposed new §221.96(c) is necessary to provide an opportunity for hearing while balancing the need for quick resolution of the hearing and the finality of the order. The 10-day deadline for request for hearing balances those needs providing time to respond while providing a timeline for efficient and timely resolution.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Linda M. Flores, Chief Financial Officer, has determined that for each year of the first five years the amendment will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. Corrie Thompson, Director of the Enforcement Division, has determined that there will be no measurable effect on local employment or the local economy as a result of the proposal.

PUBLIC BENEFIT AND COST NOTE. Ms. Thompson has also determined that, for each year of the first five years the amended section is in effect, there are public benefits anticipated from the ability of the board to issue cease and desist orders.

Anticipated Public Benefits. The public benefits anticipated as a result of the proposal include expanding the administrative tools that the board has to prevent and limit violations of the Occupations Code and the department's rules and providing individuals that are issued a cease and desist order notice that they may be in violation of the law and a chance for a hearing.

Anticipated Costs To Comply With The Proposal. Ms. Thompson anticipates that there will be no costs to comply with these rules.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. As required by the Government Code §2006.002, the department has determined that the proposed new section will not have an adverse economic effect on small businesses, micro-businesses, or rural communities as a result of implementing this rule. Therefore, the department is not required to prepare a regulatory flexibility analysis under Government Code §2006.002.

TAKINGS IMPACT ASSESSMENT. The department has determined that no private real property interests are affected by this proposal 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, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT. The department has determined that during the first five years the proposed new section is in effect, no government program would be created or eliminated. Implementation of the proposed new section would not require the creation of new employee positions or elimination of existing employee positions. Implementation would not require an increase or decrease in future legislative appropriations to the department or an increase or decrease of fees paid to the department. The proposed new section does not create a new regulation, or expand, or repeal an existing regulation. Lastly, the proposed new section does not affect the number of individuals subject to the rule's applicability and will not affect this state's economy.

REQUEST FOR PUBLIC COMMENT. If you want to comment on the proposal, submit your written comments by 5:00 p.m. CDT on September 21, 2020. A request for a public hearing must be sent separately from your written comments. Send written comments or hearing requests by email to rules@txdmv.gov or by mail to Office of General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731. If a hearing is held, the department will consider written comments and public testimony presented at the hearing.

STATUTORY AUTHORITY. The amendment 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; and more specifically, Occupations Code §2302.255 which provides the board authority to issue a cease and desist order prohibiting a person not licensed under Occupations Code Chapter 2302 from violating that chapter, an administrative rule, or an order adopted under that chapter.

CROSS REFERENCE TO STATUTE. Occupations Code §2302.255 and Transportation Code §1002.001.

§221.96.Cease and Desist Order.

(a) The board may issue a cease and desist order if the board reasonably believes a person who is not licensed under Occupations Code Chapter 2302 is violating that chapter or a rule or order adopted under that chapter.

(b) A cease and desist order may require a person to cease and desist from committing a violation or from engaging in any practice regulated by the board as necessary to prevent the violation. The order must contain a notice that a request for hearing may be filed under this section.

(c) A person to whom a cease and desist order is issued may file a written request for a hearing before the board. The order is final unless a request for hearing is timely filed. The person must file the hearing request not later than the 10th day after the date of receipt of the 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 7, 2020.

TRD-202003210

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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


CHAPTER 223. COMPLIANCE AND INVESTIGATIONS DIVISION

SUBCHAPTER B. RISK-BASED MONITORING AND PREVENTING FRAUDULENT ACTIVITY

43 TAC §223.101

INTRODUCTION. The Texas Department of Motor Vehicles (department) proposes new 43 TAC §223.101, concerning an external risk-based system of monitoring and preventing fraudulent activity related to vehicle registration and titling in order to efficiently allocate resources and personnel. The new section is necessary to implement Transportation Code §520.004(4) as added by Senate Bill 604, 86th Legislature, Regular Session (2019).

This proposal addresses risk based monitoring of regulated persons, including county tax assessor collectors, deputies, and dealers. The department has also proposed new 43 TAC §206.151 concerning the risk based monitoring of internal department operations in this issue of the Texas Register.

EXPLANATION. Proposed §223.101 is necessary under Transportation Code §520.004(4), as enacted in SB 604. Transportation Code §520.004(4) requires the department, by rule, to establish a risk-based system of monitoring and preventing fraudulent activity related to vehicle registration and titling in order to efficiently allocate resources and personnel. The requirement is included within the Sunset Advisory Commission's Change in Statute Recommendation 2.4, as stated in the Sunset Staff Report with Commission Decisions, 2018-2019, 86th Legislature (2019). The Sunset recommendation envisioned that the department develop criteria to determine varying risk levels, such as transaction volume and past violations, to strategically allocate resources and personnel. Further, monitoring and investigation would extend both to counties and their contractors, dealers, and the department's regional service centers.

To implement Transportation Code §520.004(4) in line with the Sunset recommendation, the department has developed internal and external risk-based monitoring systems. The internal system is overseen through department management and the Internal Audit Division. The external system is overseen through by the department's Compliance and Investigations Division. Each system rule is placed in its appropriate chapter based on its focus.

Proposed new §223.101 outlines the program generally, to allow flexibility for change over time and because detailed disclosure of the of the means and methods that the department's system could be used to evade the monitoring. The monitoring system does not add additional requirements or costs on any regulated person.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Linda M. Flores, Chief Financial Officer, has determined that for each year of the first five years the proposed new section will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. Timothy Menke, Director of the Compliance and Investigations Division, has determined that there will be no measurable effect on local employment or the local economy as a result of the proposal.

PUBLIC BENEFIT AND COST NOTE. Mr. Menke has also determined that, for each year of the first five years the proposed new section is in effect, the public benefits include establishing a risk-based system of monitoring and preventing fraudulent activity related to vehicle registration and titling in order to efficiently allocate resources and personnel.

Anticipated Costs To Comply With The Proposal. Mr. Menke anticipates that there will be no additional costs on regulated persons to comply with these rules, because the rules do not establish any additional requirements on regulated person.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. As required by Government Code, §2006.002, the department has determined that the proposed new section will not have an adverse economic effect on small businesses, micro-businesses, or rural communities because the proposal imposes no additional requirements, and has no financial effect, on any small businesses, micro-businesses, or rural communities. Therefore, the department is not required to prepare a regulatory flexibility analysis under Government Code §2006.002.

TAKINGS IMPACT ASSESSMENT. The department has determined that no private real property interests are affected by this proposal 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, therefore, does not constitute a taking or require a takings impact assessment under Government Code, §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT. The department has determined that each year of the first five years the proposed new section is in effect, the proposed rule:

--will not create or eliminate a government program;

--will not require the creation of new employee positions or the elimination of existing employee positions;

--will not require an increase or decrease in future legislative appropriations to the department;

--will not require an increase or decrease in fees paid to the department;

--will create new regulation §223.101 to implement Transportation Code §520.004(4);

--will not expand existing regulations;

--will not repeal existing regulations;

--will not increase or decrease the number of individuals subject to the rule's applicability; and

--will not positively or adversely affect the Texas economy.

REQUEST FOR PUBLIC COMMENT.

If you want to comment on the proposal, submit your written comments by 5:00 p.m. CST on September 21, 2020. A request for a public hearing must be sent separately from your written comments. Send written comments or hearing requests by email to rules@txdmv.gov or by mail to Office of General Counsel, Texas Department of Motor Vehicles, 4000 Jackson Avenue, Austin, Texas 78731. If a hearing is held, the department will consider written comments and public testimony presented at the hearing.

STATUTORY AUTHORITY. The department proposes new §223.101 under Transportation Code §§520.003, 520.004, and §1002.001.

--Transportation Code §520.003 authorizes the department to adopt rules to administer Transportation Code Chapter 520.

--Transportation Code §520.004 requires the department to establish by rule a risk-based system of monitoring and preventing fraudulent activity related to vehicle registration and titling in order to efficiently allocate resources and personnel.

--Transportation Code §1002.001, authorizes the board to adopt rules that are necessary and appropriate to implement the powers and the duties of the department.

CROSS REFERENCE TO STATUTE. Transportation Code §520.004.

§223.101.External Risk-Based Monitoring System.

The department's Compliance and Investigations Division shall establish a risk-based system of monitoring and preventing fraudulent activity related to vehicle registration and titling in order to efficiently allocate resources and personnel, including:

(1) establishing a risk-based system of monitoring counties and their contractors;

(2) developing criteria to determine varying risk levels for the department's fraud monitoring functions to strategically allocate resources and personnel;

(3) reviewing the department's methods for collecting and evaluating related information, including the viability of incorporating more remote transaction review practices to supplement periodic, but less frequent, on-site visits to counties; and

(4) developing and providing training to fraud investigations staff.

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 7, 2020.

TRD-202003217

Tracey Beaver

General Counsel

Texas Department of Motor Vehicles

Earliest possible date of adoption: September 20, 2020

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