Part 1.
TEXAS DEPARTMENT OF PUBLIC SAFETY
Chapter 3.
TRAFFIC LAW ENFORCEMENT
Subchapter D. TRAFFIC SUPERVISION
37 TAC §3.62
The Texas Department of Public Safety adopts amendments to §3.62,
concerning Regulations Governing Transportation Safety, without changes to
the proposed text as published in the November 30, 2001, issue of the
§3.62 is amended to implement the provisions of Senate Bill 220 directing
the department to establish procedures, including training, for the certification
of certain sheriffs and deputy sheriffs to enforce the provisions of Texas
Transportation Code, Chapter 644.
A second amendment is needed in order to provide clarifying language to
existing provisions of §3.62 concerning the Safety Audit Program.
The department held a public hearing on Tuesday, February 26, 2002. No
persons appeared for the public hearing. No written or oral comments were
received by the department.
The amendments are adopted pursuant to Texas Transportation Code, §644.051,
and Texas Government Code, §411.018, which authorizes the director of
the Texas Department of Public Safety with the authority to adopt rules regulating
the safe operation of commercial motor vehicles and the safe transportation
of hazardous materials; Texas Transportation Code, §644.101; and Texas
Government Code, §411.004(3), which authorizes the Public Safety Commission
to adopt rules considered necessary for carrying out the department's work.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 2, 2002.
TRD-200202075
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Effective date: April 22, 2002
Proposal publication date: November 30, 2001
For further information, please call: (512) 424-2135
Subchapter G. VEHICLE EMISSIONS INSPECTION AND MAINTENANCE PROGRAM
37 TAC §23.95
The Texas Department of Public Safety adopts new §23.95,
concerning Waiver for Low Volume Emissions Inspection Stations, with changes
to the proposed text as published in the January 4, 2002, issue of the
The new section is adopted to implement provisions of Tex. H.B. 2134, Acts
2001, 77th Leg., R.S., ch. 1075, §1, directing the Texas Natural Resource
Conservation Commission (TNRCC) and the Department of Public Safety to adopt
procedures to encourage a stable private market for providing emissions testing
to the public. The new section also reflects changes in the emission testing
program adopted by the TNRCC in 30 TAC §114.50 relating to Vehicle Emissions
Inspection Requirements, published in the November 16, 2001, issue of the
The new section establishes the requirements, limitations and application
procedures for certified vehicle inspection stations desiring the waiver to
conduct vehicle emission testing using only On-Board Diagnostic equipment.
One comment on the proposal was received from the Texas State Inspection
Association (TSIA). The comment as well as the department's response is summarized
below.
COMMENT: TSIA expressed opposition, in the "strongest possible terms" to
subsection (d) of the proposed rule. TSIA comments that full service (ASM
and OBD) inspection stations are purchasing expensive dynamometers under the
assumption that an OBD-only station will be limited to 1,200 inspections per
year. TSIA states this assumption is based on assurances from TNRCC that the
changes to the low volume exception (OBD-only) are "not a part of the plan."
TSIA comments that full service inspection stations must have a combination
of OBD and ASM inspections in order to afford the expensive ASM/OBD vehicle
analyzer. TSIA contends that subsection (d) is the stated intent of the department
to unilaterally change the 1,200 inspection annual limit for OBD-only inspection
stations. TSIA requests the department withdraw this subsection of the proposed
rule.
RESPONSE: The department disagrees that subsection (d) expresses the intent
of the department to unilaterally change the 1,200 inspection annual limit
for OBD-only inspection stations, after other inspection stations have purchased
expensive full service testing equipment. During its proposed rulemaking on
this subject, TNRCC addressed the 1,200 numerical limit placed on OBD-only
inspection stations with the following statement. "The commission has determined
that 1,200 tests conducted by OBD-only testing stations in one year will allow
the smaller stations the option to continue to participate in the testing
program..By 2007, OBD compliant vehicles will account for 77% of the fleet
and these small stations will have an increasingly important role in the I/M
program. The commission will undertake reviewing the number of tests allowed
by OBD-only testing stations in the future." (26 TexReg 9401) The proposed
rule incorporates the 1,200 annual limit set by TNRCC and further delineates
it into a monthly 100 limit. The monthly limit prevents OBD-only stations
from exhausting their annual allotment of inspections in a short time. It
also protects full service stations from transient OBD- only inspection stations.
Transient stations without the monthly limits could open stations, conduct
the yearly number of authorized tests in a few months, close the station,
and open another station as another business entity. Subsection (d) of the
proposed rule incorporated TNRCC comment regarding future changes of those
numerical limits into the department's rule. Further, subsection (d) simply
states the department will review these numerical limits on a regular basis
and revise them according to the viability of the program, which is prescribed
by H.B. 2134, 77th Legislature, 2001 (Health and Safety Code, §382.205(e),
as amended). In response, the commission is making the following change to
clarify the intent of the subsection.
CHANGE: Concerning subsection (d), delete the proposed text that reads
as follows: "The department will review the low volume waiver annual and monthly
test number limitations on a regular basis and revise the number limits according
to the viability of the vehicle emissions inspection program." Amend subsection
(d) to read as follows: "In order to encourage a stable and viable program
for providing emissions testing to the public in all areas of an affected
county, the department will review the annual low volume waiver and monthly
test number limitations on a regular basis and revise these number limits
accordingly." This is to clarify that the primary intent of the department
is to encourage a stable and viable program and changes to the low-volume
yearly and monthly limitations will not occur without adequate consultation
and public comment.
The new section is adopted pursuant to Texas Government Code, §411.004(3),
which authorizes the Public Safety Commission to adopt rules considered necessary
for carrying out the department's work and Texas Transportation Code, §§548.302-
548.304, and §§548.403 and 548.405.
§23.95.Waiver for Low Volume Emissions Inspection Stations.
(a)
General. 37 TAC §23.93(j)(1)(G) of this title (relating
to Vehicle Emissions Inspection and Maintenance Program) requires that all
public certified emissions inspection stations offer both Acceleration Simulation
Mode 2 (ASM2) and On-Board Diagnostic II (ODBII) vehicle emissions tests.
This section provides the requirements, application procedures, and the limitations
of the low volume waiver provided by 37 TAC §23.93 (relating to Vehicle
Emissions Inspection and Maintenance Program). This waiver allows a public
certified inspection station to perform limited state required vehicle emission
testing on 1996 and newer model year vehicles using department approved OBDII
testing equipment. Government and fleet inspection stations do not require
this waiver.
(b)
Limitations of low volume waiver.
(1)
Notwithstanding subsection (a) of this section, under no
circumstance shall an inspection station, public, government or fleet, operating
with only OBDII test equipment issue an inspection certificate to a "designated
vehicle" as defined in 37 TAC §23.93 of this title (relating to Vehicle
Inspection Emissions and Maintenance Program) which is model year 1995 and
older.
(2)
An inspection station operating under a low volume waiver
is limited to performing 1200 emission inspections per year. This limitation
is achieved through the OBD analyzer software and the vehicle inspection database
contractor. Each month, the inspection station is allocated 100 emission tests.
After the monthly test allocation of the station has been used, no more inspections
will be allowed until the next month. In the event that the station performs
less than 100 emission tests, the remaining number will carry over to the
next month. The annual waiver limit number will be automatically reset each
January with no carry over from the previous year.
(c)
Applications for waiver.
(1)
New inspection station applications shall follow the procedures
in 37 TAC §23.1 of this title (relating to New Applications) with the
addition that the application form be annotated with "LOW VOLUME WAIVER -
OBD ONLY" at the top of the form. New applicants will include written acknowledgement
of limitation of low volume waiver as indicated in paragraph (2)(G) of this
subsection.
(2)
Owners or operators of currently certified emission inspection
stations shall request this waiver by letter or fax to the local department
Regional Supervisor. This written correspondence must include the following:
(A)
Station name,
(B)
Physical address of the station,
(C)
Mailing address of the station,
(D)
Station number,
(E)
Signature of the station owner or operator,
(F)
Copy of purchase order or receipt for state approved OBDII
only emission testing equipment, and
(G)
Signatory's statement acknowledging the limitations of
low volume waiver. This statement shall read as follows: "I understand the
conditions and limitations of being granted a low volume, OBD only emissions
inspection station waiver. I agree to the limitation of 1200 annual emissions
tests per year and agree to the 100 monthly emission test limit. I agree this
inspection station shall not issue certificates to other than 1996 and newer
model year designated vehicles. I understand and agree that violating the
terms of this waiver shall result in the suspension and/or revocation of this
station's certification."
(3)
The local Regional Supervisor will objectively review each
application. After review, the Regional Supervisor shall indicate approval
or disapproval by endorsement, with a copy provided to the requesting inspection
station and the departmental file on the station. If disapproved, the Regional
Supervisor must provide reasons for the department's denial of the waiver.
(d)
In order to encourage a stable and viable program for providing
emissions testing to the public in all areas of an affected county, the department
will review the annual low volume waiver and monthly test number limitations
on a regular basis and revise these number limits accordingly.
(e)
This waiver is not available for inspection stations in
El Paso County.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 2, 2002.
TRD-200202074
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Effective date: April 22, 2002
Proposal publication date: January 4, 2002
For further information, please call: (512) 424-2135
37 TAC §23.96
The Texas Department of Public Safety adopts new §23.96,
concerning the Emissions Analyzer Access/Identification card, without changes
to the proposed text as published in the February 15, 2002, issue of the
The new section establishes procedures for issuance and use of this card
including the department's security policy relating to the card. The new section
is necessary since the emissions analyzer access/identification card (access/ID
card) is required by software changes in the vehicle emissions analyzers used
after May 1, 2002 in all counties, except El Paso, performing vehicle emissions
testing. The new specification requires access to the vehicle emissions analyzers
at certified inspection stations be controlled using an access/ID card. The
access/ID card features a bar-coded access code combined with a unique personal
identification number (PIN) for each individual vehicle inspector. The access/ID
card will also display a photograph of the inspector.
One comment on the proposal was received from the Texas State Inspection
Association (TSIA). The comment as well as the department's response is summarized
below.
COMMENT: TSIA comments contained three points. First, TSIA suggested the
access/ID cards be issued no later than 24 hours after completion of all inspector
certification requirements. Second, it is suggested a backup plan in the event
equipment that produces the access/ID card malfunctions. Third, TSIA suggested
reporting of lost, stolen, or misplaced access/ID cards be in writing only.
Regarding the third item of their comment, TSIA believes an "in writing only"
reporting requirement will prevent fraudulent use of the access/ID card by
a "dishonest inspector" who later claims to have verbally reported the card.
However, it also recommends a voice mail system of reporting losses during
weekends or holidays. Additionally, on the subject of lost or missing access/ID
cards, TSIA believes that inspectors who properly report a missing access/ID
card to the department should not be held responsible for its unauthorized
use.
RESPONSE: The department disagrees with TSIA comments. First, the access/ID
cards will be issued locally when the inspector completes the last certification
requirement. The last requirement is the inspector being present for photographing
the identification picture on the card. The card will be issued immediately
thereafter. Second, each DPS regional office has multiple units to issue access/ID
cards. If one set of equipment malfunctions, a backup is available locally.
Third, the rule simply states that the loss of an access/ID card shall be
reported to the department representative immediately. If the inspector wants
to insure documentation of the report, they may follow up any verbal notification
with a written report. The department does not have the fulltime employee
(FTE) assets to staff a 24-hour call-in system on weekends and holidays for
lost or misplaced access/ID cards. Finally, all access/ID cardholders are
responsible for its fraudulent use. The access/ID card can not be used without
the unique personal identification number (PIN). Fraudulent use of an access/ID
card can only be achieved if the access/ID cardholder violates this rule,
which prohibits the inspector from giving, sharing, lending, or divulging
their PIN without the explicit consent of appropriate department personnel.
The department did not revise the rule in response to this comment.
The new section is adopted pursuant to Texas Government Code, §411.004(3),
which authorizes the Public Safety Commission to adopt rules considered necessary
for carrying out the department's work and Texas Transportation Code, §548.302,
which authorizes the commission to develop and impose requirements to ensure
inspection certificates are not issued to a vehicle subject to the motor vehicle
emissions inspection and maintenance program unless the vehicle has passed
a motor vehicle emissions inspection; §548.303, which authorizes the
commission to administer the Motor Vehicle Emissions Inspection and Maintenance
Program; §548.002, which authorizes the Department of Public Safety to
adopt rules and enforce the compulsory inspection of vehicles; and §548.401,
which allows the issuance of inspection certificates only if certified under
rules adopted by the department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 2, 2002.
TRD-200202073
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Effective date: April 22, 2002
Proposal publication date: February 15, 2002
For further information, please call: (512) 424-2135
37 TAC §§23.201 - 23.214
The Texas Department of Public Safety adopts new Subchapter
I, §§23.201-23.214, concerning Vehicle Emissions Inspection and
Maintenance Advisory Committee, without changes to the proposed text as published
in the November 30, 2001, issue of the
Texas Register
(26 TexReg 9762).
The new sections are necessary to establish the Vehicle Emissions Inspection
and Maintenance Advisory Committee as provided in Transportation Code, §548.006
as amended by House Bill 2134, Acts 2001, 77th Leg., R.S., ch. 1075.
No comments were received regarding adoption of the new sections.
The new sections are adopted pursuant to Texas Government Code, §411.004(3),
which authorizes the Public Safety Commission to adopt rules considered necessary
for carrying out the department's work and the provisions of §7 of House
Bill 2134, Acts 2001, 77th Leg., R.S., ch. 1075.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 2, 2002.
TRD-200202072
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Effective date: April 22, 2002
Proposal publication date: November 30, 2001
For further information, please call: (512) 424-2135
Chapter 161.
COMMUNITY JUSTICE ASSISTANCE DIVISION ADMINISTRATION
Chapter 23.
VEHICLE INSPECTION
Subchapter I. VEHICLE EMISSIONS INSPECTION AND MAINTENANCE ADVISORY COMMITTEE
Part 6.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE