ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter A. General Provisions 16 TAC sec.sec.5.1-5.6 The Railroad Commission of Texas adopts the repeal of sec. sec.5.1-5.6, concerning policy, scope, citation, definitions, examination of facilities and records, and preservation duplicates of commission records, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 811). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b; the Texas Motor Bus Act, Texas Civil Statutes, Article 911a; and the Texas Transportation Brokers Act, Texas Civil Statutes, Article 911f, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers and the regulation of motor transportation brokers of fresh fruits and vegetables. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507870 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 16 TAC sec.sec.5.1-5.4 The Railroad Commission of Texas adopts new sec.sec.5.1-5.4, concerning policy, scope, citation, and preservation duplicates of commission records, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 812). The commission adopts these sections in conjunction with other proposed changes to Chapter 5, which is being updated in response to the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103- 305), effective January 1, 1995. The new sections bring the general provisions of the title into conformity with the remainder of this title. No comments were received regarding adoption of the new sections. The new sections are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b; the Texas Motor Bus Act, Texas Civil Statutes, Article 911a; Texas Civil Statutes, Article 911f; and Texas Civil Statutes, Article 6687-9b, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers, the operations of tow trucks and vehicle storage facilities, and the regulation of motor transportation brokers of fresh fruits and vegetables. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507897 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter B. Operating Certificates, Permits, and Licenses 16 TAC sec.5.21, sec.5.22 The Railroad Commission of Texas adopts amendments to sec.5.21 and sec.5.22, concerning definitions and application for certificate of registration, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 812). The commission adopts these sections in conjunction with other proposed changes to Chapter 5, which is being updated in response to the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103- 305), effective January 1, 1995. These amendments correct internal cross- references to other subchapters, amend the provisions for a safety affidavit, and eliminate double payment of per-vehicle fees that would result under the commercial carrier registration system and the federal single-state registration system. The commission received two comments supporting the amendment in sec.5.22, which eliminates double payment of per-vehicle fees when vehicles are registered under both the commercial vehicle system and the single-state system. The commission received no comments from groups or associations regarding the proposed amendments. The amendments are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b; the Texas Motor Bus Act, Texas Civil Statutes, Article 911a; and Texas Civil Statutes, Article 6687-9b, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers and for the operations of tow trucks. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507905 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 16 TAC sec.5.33, sec.5.34 The Railroad Commission of Texas adopts new sec.5.33, concerning safety regulations of the Department of Transportation and sec.5.34, concerning explosives and other dangerous articles. Section 5.33 is adopted with changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 813), and sec.5.34 is adopted without changes and will not be republished. The commission adopts these sections in light of recent legislative changes to statutes concerning regulation of transportation to reorganize commission rules into concise subchapters for each category of rules, and to incorporate safety and hazardous material rules applicable to motor carriers into Subchapter B, which concerns commercial carriers. The change to sec.5.33(d)(10) will allow police in cities with populations of 100,000 or more to be certified by the Department of Public Safety in the enforcement of federal and state motor carrier safety laws and rules. The change makes the rule consistent with an amendment to the Texas Motor Carrier Safety Law, Texas Civil Statutes, Article 6701d, sec.139, made by the 73rd Legislature, which changed the population requirement from 300,000 to 100,000. No comments were received regarding adoption of the new sections. The new sections are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property. sec.5.33. Safety Regulations of the Department of Transportation. (a) The commission incorporates by reference the Federal Motor Carrier Safety Regulations, 49 Code of Federal Regulations, Parts 390-393 and 395-397, including amendments and interpretations thereto. (b) For purposes of this section only, and with respect to the adoption in subsection (a), certain terms when used in the federal regulations as adopted in subsection (a) of this section will be defined as follows: (1) the definition of a motor carrier will be the same as that given in Texas Civil Statutes, Article 6701d, sec.2(o); (2) the definition of hazardous material shipper will be the same as that given in Texas Civil Statutes, Article 6701d, sec.2(p); (3) interstate or foreign commerce will include all movements by motor vehicle, both interstate and intrastate, over the streets and highways of this state; (4) department means the Railroad Commission of Texas; (5) regional highway administrator means the director of the Texas Department of Public Safety; (6) farm vehicle means any vehicle or combination of vehicles controlled and/or operated by a farmer or rancher being used to transport agriculture products, farm machinery, and farm supplies to or from a farm or ranch; and (7) private carrier means any person not included in the terms "common carrier by motor vehicle" or "contract carrier by motor vehicle" who or which transports by motor vehicle property of which person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise. (c) Exceptions to the adoption in subsection (a) of this section were made by Texas Civil Statutes, Article 6701d, sec.139, and are adopted as follows. (1) The regulations shall be applicable to vehicles with an actual gross weight, a registered gross weight, or a gross weight rating in excess of 26,000 pounds, except that the regulations will be applicable to farm vehicles with an actual gross weight, a registered gross weight, or vehicles with a gross rating of 48,000 pounds or more. Vehicles transporting 15 or more passengers and all vehicles transporting hazardous materials requiring a placard are subject to the regulations. (2) Drivers in intrastate commerce will be permitted to drive 12 hours following eight consecutive hours off duty. (3) Such regulations shall not apply to vehicles operated intrastate used in oil or water well servicing or drilling which are constructed as a machine consisting of a mast, an engine for power, a draw works, and a chassis permanently constructed or assembled for such purpose or purposes. (4) Such regulations shall not apply to a mobile crane which is an unladen, self-propelled vehicle constructed as a machine used to raise, shift, or lower weights when operated intrastate. (5) The maintenance of any type of government form, separate company form, driver's record of duty status, or a driver's daily log is not required if the vehicle is operated within a 150 air mile radius of the normal work reporting location: (A) if owner has another method by which he keeps, as a business record, date and time of delivery of product or service, and location of delivery of product or service so that a general record of the driver's hours of service may be compiled; or (B) if another law requires or specifies the maintenance of delivery tickets, sales invoices, or other documents which show the date of delivery and quantity of merchandise delivered, so that a general record of the driver's hours of service may be compiled; and (C) provided that the business records generally conform with the following: (i) the time the driver reports for duty each day; (ii) the total number of hours the driver is on duty each day; (iii) the time the driver is released from duty each day; and (iv) the total time for the preceding seven days in accordance with 49 Code of Federal Regulations, sec.395.8, of the Federal Motor Carrier Safety Regulations for drivers used for the first time or intermittently. (6) Drivers who are not transporting hazardous materials and were regularly employed in Texas as an intrastate motor carrier prior to the effective date of this adoption are not required to meet the medical standards contained in the federal regulations. (A) For the purpose of enforcement of this regulation, those drivers who reached their 18th birthday after September 1, 1989, shall be required to meet all medical standards. (B) The exceptions contained in this paragraph shall not be deemed as exemption from drug testing requirements contained in 49 Code of Federal Regulations, Part 391. (d) Exceptions adopted by the commission not specified in Texas Civil Statutes, Article 6701d, sec.139, are as follows. (1) 49 Code of Federal Regulations, sec.393.86, requiring rear end protection shall not be applicable provided the vehicle was manufactured prior to September 1, 1991. (2) Under this section, the Texas Department of Public Safety may provide a waiver for a person who is otherwise disqualified under 49 Code of Federal Regulations, sec.391.41(b)10, provided the person meets the vision standards adopted by the Texas Department of Public Safety in 37 Texas Administrative Code sec.15.51 (relating to vision tests). (A) Applications for a waiver shall not be accepted by the Texas Department of Public Safety after January 1, 1990. (B) Waivers granted under this paragraph are automatically renewed, provided the applicant continues to meet vision standards adopted by the Texas Department of Public Safety in 37 Texas Administrative Code sec.15.51 (relating to vision tests). (3) Drivers of vehicles under this section operating in intrastate transportation shall not be permitted to drive after having worked and/or driven for 70 hours in any consecutive seven-day period. (4) 49 Code of Federal Regulations, sec.391.11b(1), is not adopted for intrastate drivers. The minimum age for an intrastate driver shall be 18 years of age. (5) 49 Code of Federal Regulations, sec.391.11b(2), is not adopted for intrastate drivers. An intrastate driver must have successfully passed the examination for a Texas driver's license and be a minimum age of 18 years old. (6) 49 Code of Federal Regulations, sec.391.51, pertaining to driver qualification files is effective on and after January 1, 1990. (7) Part 391, 49 Code of Federal Regulations, as it pertains to drug testing requirements, are effective on and after December 21, 1990, for intrastate drivers. (8) Texas Civil Statutes, Article 6701d, sec.132(b) and (c), concerning brakes on trailers weighing 15,000 pounds gross weight or less, take precedence over the brake requirements in the federal regulations for trailers of this gross weight specification. (9) Texas Civil Statutes, Article 6701b-1, concerning identifying markings on commercial motor vehicles shall take precedence over 49 Code of Federal Regulations, sec.390.21, for vehicles operated in intrastate commerce. (10) Peace officers of any Texas city having a population of 100,000 or more are considered to be certified by the Texas Department of Public Safety and eligible to enforce the Federal Motor Carrier Safety Regulations, provided each officer enforcing the Federal Motor Carrier Safety Regulations must have completed a course of training of which the curriculum and instructors have been approved by the director of the Texas Department of Public Safety. Peace officers requesting certification as required in this paragraph shall submit to the Texas Department of Public Safety a schedule of the courses which have been completed, including identification of the instructor(s). Peace officers certified by the director of the Texas Department of Public Safety shall have the authority to enforce the regulations herein adopted applicable to intrastate drivers and vehicles and all regulations in 49 Code of Federal Regulations, Parts 390-393 and 395-397, applicable to interstate drivers and vehicles. (11) Regulations and exceptions adopted herein are applicable to intrastate drivers and vehicles. All regulations contained in 49 Code of Federal Regulations, Parts 390-393 and 395-397, and all amendments thereto pertaining to interstate drivers and vehicles are adopted. (12) Nothing in this section shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operation and employee safety and health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507906 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter C. System of Accounts and Records 16 TAC sec.sec.5.51, 5.52, 5.56-5.59 The Railroad Commission of Texas adopts the repeal of sec. sec.5.51, 5.52, and 5.56-5.59, concerning definitions, double entry books required, verification of entries, claim register, information required, and limited common carrier motor carrier, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 814). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b; and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507871 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter D. Maintenance, Preservation, and Destruction of Records 16 TAC sec.sec.5.71-5.73 The Railroad Commission of Texas adopts the repeal of sec. sec.5.71-5.73, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 815). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507872 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter E. Annual and Other Reports 16 TAC sec.sec.5.81-5.83, 5.85 The Railroad Commission of Texas adopts the repeal of sec. sec.5.81-5.83 and 5. 85, concerning annual report required, form of annual reports, additional reports, and sale and transfer, lease, and annual report, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 815). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507873 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter F. Bills of Lading and Waybills 16 TAC sec.sec.5.91-5.104 The Railroad Commission of Texas adopts the repeal of sec. sec.5.91-5.104, concerning bills of lading to be issued, contents of bills of lading, issuance of waybills, contents of waybills, waybill to accompany shipment, carriers of newspapers, limited common carriers: waybill-bill of lading, carriers of motion picture films, common carriers providing courier service, through billing by regular route common carriers, motor carriers providing service in armored cars and trucks, operations as a parcel carrier, contract carriers providing pickup and delivery service, and contract carriers providing dedicated service, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 816). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, which authorizes the commission to prescribe rules and regulations for the operations of motor carriers of property. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507874 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter C. Household Goods Carriers 16 TAC sec.5.101, sec.5.124 The Railroad Commission of Texas adopts new sec.5.101 and sec.5.124, concerning definitions and bills of lading to be issued, without changes to the proposed text as published in the February 10, 1995, issue of the Texas Register (20 TexReg 928). The commission adopts these sections in light of recent legislative changes to statutes concerning regulation of transportation to reorganize commission rules into concise subchapters for each category of rules. No comments were received regarding adoption of the new sections. The new sections are adopted pursuant to Texas Civil Statutes, Article 911b, which authorizes the commission to prescribe rules and regulations for motor carriers of property. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507907 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 10, 1995 For further information, please call: (512) 463-7008 16 TAC sec.sec.5.103-5.123, 5.125-5.132, 5.134-5.147 The Railroad Commission of Texas adopts new sec.sec.5.103-5.113, 5.115-5.122, 5.125-5.132, 5.134, 5.135, and 5.137-5.147, concerning explosives and other dangerous articles, driver's daily log, minimum limits of financial responsibility, insurance carriers, termination of insurance coverage, qualification as self-insurer, compliance with laws and regulations, prohibition of unauthorized services, call and demand service, use of highways, pick-up and delivery service, joinder of motor carrier certificates, division of certificate or permit authority, consolidation of certificate or permit authority, compliance pending approval, cancellation, suspension, and reinstatement of intrastate certificates or permits, reinstatement fee, local representatives, deceptive advertising prohibited, issuance of waybills, freightbills, inventory of shipment, weights, accessorial service statement, claims for loss or damage, equipment registration and cab cards, other identifying marks, joint transportation between carriers, credit, mileage rates, ratemaking, collective rate applications, temporary rates, annual reports, records, examination of facilities and records, registered agent and address for service of process, forms, procedure, and administrative sanctions. Sections 5.102, 5.114, 5.123, and 5.136, concerning safety requirements, operating authority, estimate sheet, and tariff rates and charges, are adopted with changes to the proposed text and withdraws from consideration proposed sec.5.133, concerning lease-related activities of motor carriers, as published in the February 7, 1995, issue of the Texas Register (20 TexReg 816). Sections 5.103-5.113, 5.115-5.122, 5.125-5.132, 5.134, 5.135, and 5.137-5.147 are adopted without changes and will not be republished. The commission adopts these sections in light of recent legislative changes to statutes concerning regulation of transportation to reorganize commission rules into concise subchapters for each category of rules. The commission held a public hearing on March 30, 1995, and received both written and oral comments on the proposed rules, summarized as follows. (1) The safety provisions included in proposed sec.5.102 exempt vehicles with an actual weight, a registered gross weight, or a gross weight rating of 26,000 pounds or less. Household goods carriers should be subject to the safety requirements regardless of the weight of the vehicle being operated by the carrier. (2) Proposed sec.5.102(d)(10) would allow police officers in cities with a population of 300,000 or greater to be certified by the Texas Department of Public Safety to enforce state and federal safety laws and rules. Cities with populations of 100,000 or greater should be permitted to have their peace officers certified to enforce the safety laws. Such a change to the proposed rule would free up more of the Texas Department of Public Safety officers to work the rural areas of the state. (3) The commission should not merge separately granted portions of a certificate where there is duplicative authority granted, particularly where there exist "buy-back" agreements between a household goods carrier and its agents. This would be contrary to the long standing practice of the commission as announced in Applications of Allied Van Lines, Docket Numbers 007143C8D and 036088A1S, in which the commission held that the "Doctrine of Merger" does not apply where there is a "buy-back" agreement between the carrier and its agent. (4) The commission should not adopt language in its rules that would require household goods carriers to exercise direction and control of personnel or equipment used in operations under a certificate. Such language in the proposed rules could conflict with the present Internal Revenue Service opinion on the amount of control a carrier can exercise over contractors before they are deemed employees. (5) The proposed credit rules do not provide relief to carriers who are not paid in a timely manner to compensate them for the cost of money. (6) In light of legislation reforming trucking regulation now pending in the 74th legislature, and with the high probability of its passage, why is the commission now attempting to change its rules? [Senate Bill 3 was enacted by the 74th Legislature and will become effective on September 1, 1995.] (7) Because it has no authority to do so, the commission should not adopt rules that establish the existing rates and charges for household goods carriers as benchmark rates from which carriers can charge as much as 15% above or below the current tariff rates. The commission received other comments, relating to federal deregulation legislation and state legislation pending in the 74th Legislature, which comments cannot be addressed within either the rulemaking function of the commission or within the scope of the notice given for specific proposed rules. The commission disagrees with comment (1) that all vehicles operated by household goods carriers, regardless of weight, should be subject to the safety requirements of the commission. The legislature has determined in Texas Civil Statutes, Article 6701d, sec.139, that only vehicles having gross weight rating of 26,000 pounds or less should not be subject to the federal motor carrier safety regulations. Through its adoption of sec.5.102, the commission is adopting the federal motor carrier safety regulations along with certain exemptions contained in Texas Civil Statutes, Article 6701d, sec.139, one of which exempts motor vehicles weighing 26,000 pounds or less. The commission agrees with comment (2) concerning the certification of municipal peace officers in cities with populations of 100,000 or more. Texas Civil Statutes, Article 6701d, sec.139 was amended by the 73rd Legislature to allow certification of peace officers in cities with populations of 100,000 or more, instead of the 300,000 or more previously permitted by the statute. The proposed rule failed to recognize this change to the statute. The adopted version of sec.5.102(d)(10) makes this change, consistent with the amendment to the statute made by the 73rd Legislature. The commission disagrees with comment (3) concerning the merger of separately granted portions of a certificate(s) where there is a duplicative grant of authority. As proposed, the rule is entirely permissive and allows the commission to consider its past practice as announced in Applications of Allied Van Lines, Docket Numbers 007143C8D and 036088A1S, regarding the "Doctrine of Merger." Nevertheless, the commission adopts sec.5.114(b) with additional language clearly exempting grants of authority to household good carriers from the "Doctrine of Merger," in cases where there are "buy-back" agreements between carriers and their agents. The commission agrees with comment (4) concerning the degree of direction and control household goods carriers must exercise over personnel and equipment. Section 5.133 is unnecessary in light of the adoption of sec.5.121, which sets out the relationship between a household goods carrier and its local agents, and the required control that must be over the activities of such agents. The commission withdraws from consideration proposed sec.5.133. The commission disagrees with comment (5) concerning credit extended by carriers of household goods. The commission adopts credit rules identical to those that have been in force at the commission for many years. Those rules require the carriers to investigate the credit worthiness of prospective shippers to ensure that freight bills are paid promptly within the time frame set forth in the rules. A carrier failing to take these required precautions does so at its own risk. The purpose of credit rules is to ensure that household goods carriers maintain an adequate cash flow without having to borrow money to cover operating costs and to prevent undue discrimination between shippers with the extension of credit, not to provide carriers with an additional revenue source to recover the cost of money. By way of addressing comment (6), the commission's adoption of these rules is intended to provide the Texas Department of Transportation (department) with a comprehensive set of rules that can be used in the likely event that the department is unable to have its own rules in place by September 1, 1995. Senate Bill 3 provides for the department to transfer the existing rules of the commission to administer the act until January 1, 1996. Also, changes are necessary because of the federal preemption of certain state regulatory functions regarding transportation. With regard to comment (7) concerning benchmark rates, the commission disagrees with the argument that it lacks the authority to establish maximum and minimum rates in this rulemaking, but will decline to adopt sec.5.136(b) as proposed. The 74th Legislature's passage of Senate Bill 3, which becomes effective on September 1, 1995, makes the concept of rate flexibility moot for carriers of household goods. At most, any rule in this regard would have a life of only about two months and, with such a short existence, would likely confuse an orderly transition of household goods carriers into an unregulated market. Adopted sec.5.136 deletes proposed subsection (b) entirely. Adopted sec.5.123 is also changed from the proposed version, by deleting language referring to the benchmark rates proposed to be established by sec.5.136(b). Southwest Warehouse Association was the only group or association commenting on the proposed rules. The new sections are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, which authorizes the commission to prescribe rules and regulations for the operations of motor carriers of property. sec.5.102. Safety Requirements. (a) The commission incorporates by reference the Federal Motor Carrier Safety Regulations, 49 Code of Federal Regulations, Parts 390-393 and 395-397, including amendments and interpretations thereto. (b) For purposes of this section only, and with respect to the adoption in subsection (a), certain terms when used in the federal regulations as adopted in subsection (a) of this section will be defined as follows: (1) the definition of a motor carrier will be the same as that given in Texas Civil Statutes, Article 6701d, sec.2(o); (2) the definition of hazardous material shipper will be the same as that given in Texas Civil Statutes, Article 6701d, sec.2(p); (3) interstate or foreign commerce will include all movements by motor vehicle, both interstate and intrastate, over the streets and highways of this state; (4) department means the Railroad Commission of Texas; (5) regional highway administrator means the director of the Texas Department of Public Safety; (6) farm vehicle means any vehicle or combination of vehicles controlled and/or operated by a farmer or rancher being used to transport agriculture products, farm machinery, and farm supplies to or from a farm or ranch; and (7) private carrier means any person not included in the terms "common carrier by motor vehicle" or "contract carrier by motor vehicle" who or which transports by motor vehicle property of which person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise. (c) Exceptions to the adoption in subsection (a) of this section were made by Texas Civil Statutes, Article 6701d, sec.139, and are adopted as follows. (1) The regulations shall be applicable to vehicles with an actual gross weight, a registered gross weight, or a gross weight rating in excess of 26,000 pounds, except that the regulations will be applicable to farm vehicles with an actual gross weight, a registered gross weight, or vehicles with a gross rating of 48,000 pounds or more. Vehicles transporting 15 or more passengers and all vehicles transporting hazardous materials requiring a placard are subject to the regulations. (2) Drivers in intrastate commerce will be permitted to drive 12 hours following eight consecutive hours off duty. (3) Such regulations shall not apply to vehicles operated intrastate used in oil or water well servicing or drilling which are constructed as a machine consisting of a mast, an engine for power, a draw works, and a chassis permanently constructed or assembled for such purpose or purposes. (4) Such regulations shall not apply to a mobile crane which is an unladen, self-propelled vehicle constructed as a machine used to raise, shift, or lower weights when operated intrastate. (5) The maintenance of any type of government form, separate company form, driver's record of duty status, or a driver's daily log is not required if the vehicle is operated within a 150 air mile radius of the normal work reporting location: (A) if owner has another method by which he keeps, as a business record, date and time of delivery of product or service, and location of delivery of product or service so that a general record of the driver's hours of service may be compiled; or (B) if another law requires or specifies the maintenance of delivery tickets, sales invoices, or other documents which show the date of delivery and quantity of merchandise delivered, so that a general record of the driver's hours of service may be compiled; and (C) provided that the business records generally conform with the following: (i) the time the driver reports for duty each day; (ii) the total number of hours the driver is on duty each day; (iii) the time the driver is released from duty each day; and (iv) the total time for the preceding seven days in accordance with 49 Code of Federal Regulations, sec.395.8, of the Federal Motor Carrier Safety Regulations for drivers used for the first time or intermittently. (6) Drivers who are not transporting hazardous materials and were regularly employed in Texas as an intrastate motor carrier prior to the effective date of this adoption are not required to meet the medical standards contained in the federal regulations. (A) For the purpose of enforcement of this regulation, those drivers who reached their 18th birthday after September 1, 1989, shall be required to meet all medical standards. (B) The exceptions contained in this paragraph shall not be deemed as exemption from drug testing requirements contained in 49 Code of Federal Regulations, Part 391. (d) Exceptions adopted by the commission not specified in Texas Civil Statutes, Article 6701d, sec.139, are as follows. (1) 49 Code of Federal Regulations, sec.393.86, requiring rear end protection shall not be applicable provided the vehicle was manufactured prior to September 1, 1991. (2) Under this section, the Texas Department of Public Safety may provide a waiver for a person who is otherwise disqualified under 49 Code of Federal Regulations, sec.391.41(b)(10), provided the person meets the vision standards adopted by the Texas Department of Public Safety in 37 Texas Administrative Code sec.15.51 (relating to vision tests). (A) Applications for a waiver shall not be accepted by the Texas Department of Public Safety after January 1, 1990. (B) Waivers granted under this paragraph are automatically renewed, provided the applicant continues to meet vision standards adopted by the Texas Department of Public Safety in 37 Texas Administrative Code sec.15.51 (relating to vision tests). (3) Drivers of vehicles under this section operating in intrastate transportation shall not be permitted to drive after having worked and/or driven for 70 hours in any consecutive seven-day period. (4) 49 Code of Federal Regulations, sec.391.11(b)(1), is not adopted for intrastate drivers. The minimum age for an intrastate driver shall be 18 years of age. (5) 49 Code of Federal Regulations, sec.391.11(b)(2), is not adopted for intrastate drivers. An intrastate driver must have successfully passed the examination for a Texas driver's license and be a minimum age of 18 years old. (6) 49 Code of Federal Regulations, sec.391.51, pertaining to driver qualification files is effective on and after January 1, 1990. (7) The portions of 49 Code of Federal Regulations, Part 391, pertaining to drug testing requirements, are effective on and after December 21, 1990 for intrastate drivers. (8) Texas Civil Statutes, Article 6701d, sec.132(b) and (c), concerning brakes on trailers weighing 15,000 pounds gross weight or less, take precedence over the brake requirements in the federal regulations for trailers of this gross weight specification. (9) Texas Civil Statutes, Article 6701b-1, concerning identifying markings on commercial motor vehicles shall take precedence over 49 Code of Federal Regulations, sec.390.21, for vehicles operated in intrastate commerce. (10) Peace officers of any Texas city having a population of 100,000 or more are considered to be certified by the Texas Department of Public Safety and eligible to enforce the Federal Motor Carrier Safety Regulations, provided each officer enforcing the Federal Motor Carrier Safety Regulations must have completed a course of training of which the curriculum and instructors have been approved by the director of the Texas Department of Public Safety. Peace officers requesting certification as required in this paragraph shall submit to the Texas Department of Public Safety a schedule of the courses which have been completed, including identification of the instructor(s). Peace officers certified by the director of the Texas Department of Public Safety shall have the authority to enforce the regulations herein adopted applicable to intrastate drivers and vehicles and all regulations in 49 Code of Federal Regulations, Parts 390-393 and 395-397, applicable to interstate drivers and vehicles. (11) Regulations and exceptions adopted herein are applicable to intrastate drivers and vehicles. All regulations contained in 49 Code of Federal Regulations, Parts 390-393 and 395-397, and all amendments thereto pertaining to interstate drivers and vehicles are adopted. (12) Nothing in this section shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operation and employee safety and health. sec.5.114. Operating Authority. (a) Certificate of public convenience and necessity or permit required. No household goods carrier shall transport household goods for hire between two or more incorporated cities without first obtaining a certificate of public convenience and necessity or permit from the commission. The application fee for a certificate of public convenience and necessity or permit shall be $100. The application shall be in the form prescribed by the commission. (b) Duplicative authority prohibited. No household goods carrier shall be granted operating authority duplicative of that held by such household goods carrier under any existing certificate or permit. If a household goods carrier receives additional duplicative authority by sale or transfer, the commission may provide for merger of the duplicative portion of such authority, except where there exists a bona fide contract between a household goods carrier and its agent providing for the repurchase of the authority by the agent. (c) Sale, assignment, lease, or transfer of operating authority. (1) On application a certificate or permit may be sold, assigned, leased, or transferred, with the approval of the commission and upon payment of a tax equal to 10% of the amount paid as consideration for the certificate. (2) A person acquiring control over a household goods carrier, whether through ownership of stock, merger, consolidation, or otherwise, shall, within 15 days after the day on which control is acquired, file notice of the change in controlling interest with the director. (3) Authority is dormant, and an application to transfer may be denied, if the commission finds that the authority, or any portion thereof, has been inactive for a period of at least three consecutive years, with no resumption of activity for a period of at least one year prior to the filing of the application. If a complaint alleging dormancy is filed against a certificate holder and the authority is shown to be dormant, then the complaint may be sustained and the dormant authority may be canceled. Nothing in this section shall prohibit the commission from bringing on its own motion a complaint alleging dormancy. (4) A current intrastate operating report covering the operation in that portion of the year immediately preceding the sale, transfer, or lease of a certificate or permit must be furnished by the seller or lessor before final approval of the sale and transfer or lease will be given by the commission. (d) Voluntary suspension of a certificate. On application by a household goods carrier, the commission may authorize such household goods carrier to suspend services under its certificate or permit for a period not to exceed one year. The application shall be in the form prescribed by the commission. The application shall be accompanied by all cab cards currently held by the applicant, together with a reinstatement fee of $25. No notice of hearing shall be required in such cases. Upon subsequent application, the commission may authorize a household goods carrier to suspend service for one additional year without notice or hearing. Any subsequent application for authority to suspend service shall be heard and determined by the commission. (e) Transportation of property other than household goods. Household goods carriers transporting property other than household goods in equipment registered with the commission are not required to comply with sec.5.22 of this title (relating to application for certificate of registration) and sec.5.23 of this title (relating to cab cards). All other provisions in Subchapter B of this title (relating to commercial carriers) will apply to household goods carriers when operating as commercial carriers. sec.5.123. Estimate Sheet. (a) Estimate of total charges made at shipper request. Whenever a shipper requests that an estimated total cost of proposed services or estimated total weight of shipment be furnished by a household goods carrier, the household goods carrier shall furnish a written estimate of charges before the shipment is loaded and only after a visual inspection of the goods to be moved is made by the estimator. The estimate sheet shall be made in the form prescribed by the commission. (b) Required information on estimate sheet. Such estimate shall contain the information hereinafter set forth, and across the top of each form there shall be imprinted in red letters not less than 1/2 inch high, the words "estimated cost of service." The following statement will also be included on the estimate form in red letters not less than 1/4 inch high: "Not a guaranteed price. When assessing final charges to the shipper, the actual weight, obtained after loading is completed, will be used." The form shall be fully executed as appropriate in each case in accordance with the instructions therein. The original or a true legible copy of each estimate form prepared in accordance with this subsection shall be delivered to the shipper and a copy thereof shall be maintained by the carrier as part of its record of shipment, in accordance with sec.5.142 of this chapter (relating to records). (c) Notification of actual weight. Whenever the shipper specifically requests notification of the actual weight and charges on a shipment, the carrier shall determine the actual weight and charges and notify the shipper within 24 hours of the time the shipment is offered for delivery. Such notification shall be at the carrier's expense. Where the shipment is in transit less than 24 hours, notification shall be made at the earliest possible time. (d) Actual charges greater than estimated charges. When assessing final charges to the shipper, the carrier must utilize the percentage, if any, from the applicable benchmark rate as in the estimate to the shipper in assessing the total charges. Whenever actual transportation charges, including packing and other accessorial charges, exceed the estimated charges by more than 10% or $25, whichever is greater, the carrier shall notify the shipper of the amount thereof by telegram or telephone at the carrier's expense. Such notice shall be made no later than 24 hours prior to the time the shipment is offered for delivery, except where the shipment is in transit less than 24 hours. Where the shipment is in transit less than 24 hours, notification shall be made at the earliest possible time. This subsection shall not apply: (1) where credit is to be extended by the carrier; or (2) where the shipper has not supplied an address or telephone number at which the communication would be received. (e) Reports of underestimates. At the request of the director, a household goods carrier shall report all instances of underestimates during the preceding month. sec.5.136. Tariff Rates and Charges. No household goods carrier shall charge, demand, collect, or receive, a different compensation for transportation services or for any accessorial service rendered, other than the rates and charges specified in the applicable tariff as prescribed by the commission. No allowance is permitted unless prescribed in the applicable tariff. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507898 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter G. C.O.D. Shipments 16 TAC sec.sec.5.111-5.117 The Railroad Commission of Texas adopts the repeal of sec. sec.5.111-5.117, concerning C.O.D. shipments permitted, C.O.D. bonds or affidavits in lieu thereof, package to be marked, collection of C.O.D. charges, undelivered C.O.D. shipments, remittance, and C.O.D. records, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 829). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507875 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter H. Tariffs and Schedules 16 TAC sec.sec.5.131-5.148 The Railroad Commission of Texas adopts the repeal of sec. sec.5.131-5.148, concerning maintenance of copies, variations in charges prohibited, allowances prohibited, temporary rates, commencement of operations, weights to be used in assessing freight charges, weighing unnecessary, alternation of freight charges, mileage rates, reference to other documents, freight bills, contract for indemnity, credit, shipper certification of weight or other measure used in assessing freight charges, prescribed rates, rates, ratemaking standards, and collective applications, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 830). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507876 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter I. Equipment, Identification and Reports 16 TAC sec.sec.5.151-5.153 The Railroad Commission of Texas adopts the repeal of sec. sec.5.151-5.153, concerning equipment reports, cab cards, and other identifying marks, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 830). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507877 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter J. Leasing and Interchange of Equipment 16 TAC sec.sec.5.161-5.163, 5.167 The Railroad Commission of Texas adopts the repeal of sec. sec.5.161-5.163 and 5.167, concerning leasing of power equipment, leasing and interchange of trailers, lease of motor vehicle with operator, and lease-related activities of motor carriers, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 831). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, which authorizes the commission to prescribe rules and regulations for the operations of motor carriers of property. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507878 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter K. Safety Requirements 16 TAC sec.sec.5.171-5.173 The Railroad Commission of Texas adopts the repeal of sec. sec.5.171-5.173, concerning safety regulations of the Department of Transportation adopted, explosives and other dangerous articles, and driver's daily logs, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 831). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507879 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter L. Insurance Requirements 16 TAC sec.sec.5.181-5.187 The Railroad Commission of Texas adopts the repeal of sec. sec.5.181-5.187, concerning evidence of insurance required, qualification as self-insurer, minimum limits, insurance carrier, termination, cargo insurance exceptions, and failure of insurance carrier, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 832). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507880 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter M. Motor Bus Companies 16 TAC sec.sec.5.201-5.246, 5.248, 5.249 The Railroad Commission of Texas adopts the repeal of sec. sec.5.201-5.246, 5. 248, and 5.249, concerning condition of buses, heating system, interior lighting system, tires, cleaning, disinfecting, and deinfestation, reserve equipment, posted information, sign prohibiting conversation with the driver, trailers, qualifications of drivers, conduct of drivers, conduct of passengers, right of transportation, transportation of property, receiving and discharging passengers, railroad crossings, insurance, systems of accounts and records, stations and terminals, station facilities, prohibited conduct, rest stops, posting of schedules, routing of passengers, baggage, compliance with schedules, unauthorized schedules, call and demand, irregular route service, interruption of service, deviation from authorized routes, establishment, change or discontinuation of bus schedules, connecting line agreement, interline bond, charger operation, transportation of Mexican national migratory workers, driver's trip report required, rates, fares, and charges for motor bus companies, required information of trip tickets, required information on continuous passage tickets, credit extended for transportation, lease or rental of motor buses, method of keeping records, motor bus package express-uniform bus bill, through bus agreements, government subsidized or mileage-reimbursed motor bus operations, registration and operation of intrastate certificates issued by the Interstate Commerce Commission pursuant to 49 United States Code, sec.10922, contract motor bus companies, motor bus certificates, rates, and regulations, and operations wholly within certain cities and their suburbs, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 832). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and Title II of the Trucking Industry Regulatory Reform Act of 1994 (Public Law 103-311), and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507881 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter D. Motor Bus Companies 16 TAC sec.sec.5.201-5.246 The Railroad Commission of Texas adopts new sec.sec.5.201, 5.203-5.210, and 5. 212-5.246, concerning definitions, explosives and other dangerous articles, driver's daily log, minimum limits of financial responsibility, insurance carriers, qualification as self-insurer, compliance with laws and regulations, prohibition of unauthorized services, use of highways, registration and operation of intrastate certificates issued by the Interstate Commerce Commission pursuant to 49 United States Code, sec.10922, operations wholly within certain cities and their suburbs, division of certificate or permit authority, consolidation of certificate or permit authority, compliance pending approval, voluntary suspension, cancellation, suspension, and reinstatement of intrastate certificates or permits, reinstatement fee, motor bus equipment, equipment registration and cab cards, other identifying marks, conduct of drivers and passengers, tickets, credit extended for transportation, trip report required, claims for loss or damage, stations and terminals, routing, establishment, change, or discontinuance of bus schedules, connecting line agreement, rates, fares, and charges of motor bus companies operating a wholly intrastate route, charter, or call and demand service, rate-making, collective rate applications, annual report required, annual review of motor bus base rates and charges, deviations from motor bus base rates, publication of deviations, suspension of deviations, specific rates and charges, records required, examination of facilities and records, registered agent and address for service of process, forms, procedure, and administrative sanctions. Section 5.202 and sec.5.211, concerning safety regulations of the Department of Transportation and operating authority, are adopted with changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 833). Sections 5.201, 5.203-5.210, and 5.212-5.246 are adopted without changes and will not be republished. The commission adopts these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), and of the Trucking Industry Regulatory Reform Act of 1994 (Public Law 103-311), and to reorganize the commission's rules into concise subchapters for each category of rules. The commission received one comment concerning the proposed new sections. The commenter, a motor bus company serving the transportation needs of 30 school districts in Texas pursuant to Texas Education Code, sec.sec.21.181, supported adoption of sec.sec.5.229(f), 5.211(h)(1)(C), and 5.232, and urged the commission to adopt additional language within the proposed rules that would exempt providers of motor bus transportation service under contract with a college or university from the public convenience and necessity requirements imposed by the Texas Motor Bus Act, Texas Civil Statutes, Article 911a. Additionally, this commenter sought clarifying language in the adopted rules to the effect that the restrictions proposed in sec.5.211(h)(2) do not apply to those motor bus companies providing service pursuant to Texas Education Code, sec.21.181, or those that provide service to colleges or universities. The commission disagrees with the commenter concerning the addition of language that providers of bus services under contract with colleges or universities should be exempt from the public convenience and necessity requirements of the Texas Motor Bus Act with the adoption of these rules. The commission finds the addition of such language would be beyond the scope of the subject matter contained in these proposed rules, and thus proper notice has not been provided to the public regarding such additional language. The commenter's proposal in this regard could be taken up in a petition for rulemaking after final adoption of these rules. The commission finds merit in the commenter's suggestion for clarifying language in sec.5.211(h)(2) regarding providers of bus services pursuant to Texas Education Code, sec.21.181. Providers of school bus services would be restricted to irregular route, call-and-demand service, for example, as the proposed rule might have been construed. Accordingly, sec.5.211(h)(2) has been changed to clarify this possible but unintended construction. The text in sec.5.202(d)(10) is changed to allow law enforcement officers in cities with populations of 100,000 or more to be certified by the Department of Public Safety in the enforcement of federal and state motor carrier safety laws and rules. This change makes the rule consistent with an amendment to the Texas Motor Carrier Safety Law, Texas Civil Statutes, Article 6701d, sec.139, made by the 73rd Legislature, which changed the population requirement for such certification from 300,000 to 100,000. The commission received no comments from groups or associations regarding the adoption of these rules. The new sections are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules for the operations of motor carriers of property and passengers. sec.5.202. Safety Regulations of the Department of Transportation. (a) The commission incorporates by reference the Federal Motor Carrier Safety Regulations, 49 Code of Federal Regulations, Parts 390-393 and 395-397, including amendments and interpretations thereto. (b) For purposes of this section only, and with respect to the adoption in subsection (a) of this section, certain terms when used in the federal regulations as adopted in subsection (a) of this section will be defined as follows: (1) the definition of a motor carrier will be the same as that given in Texas Civil Statutes, Article 6701d, sec.2(o); (2) the definition of hazardous material shipper will be the same as that given in Texas Civil Statutes, Article 6701d, sec.2(p); (3) interstate or foreign commerce will include all movements by motor vehicle, both interstate and intrastate, over the streets and highways of this state; (4) department means the Railroad Commission of Texas; (5) regional highway administrator means the director of the Texas Department of Public Safety; (6) farm vehicle means any vehicle or combination of vehicles controlled and/or operated by a farmer or rancher being used to transport agriculture products, farm machinery, and farm supplies to or from a farm or ranch; and (7) private carrier means any person not included in the terms "common carrier by motor vehicle" or "contract carrier by motor vehicle" who or which transports by motor vehicle property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise. (c) Exceptions to the adoption in subsection (a) of this section were made by Texas Civil Statutes, Article 6701d, sec.139, and are adopted as follows. (1) The regulations shall be applicable to vehicles with an actual gross weight, a registered gross weight, or a gross weight rating in excess of 26,000 pounds, except that the regulations will be applicable to farm vehicles with an actual gross weight, a registered gross weight, or vehicles with a gross rating of 48,000 pounds or more. Vehicles transporting 15 or more passengers and all vehicles transporting hazardous materials requiring a placard are subject to the regulations. (2) Drivers in intrastate commerce will be permitted to drive 12 hours following eight consecutive hours off duty. (3) Such regulations shall not apply to vehicles operated intrastate used in oil or water well servicing or drilling which are constructed as a machine consisting of a mast, an engine for power, a draw works, and a chassis permanently constructed or assembled for such purpose or purposes. (4) Such regulations shall not apply to a mobile crane which is an unladen, self-propelled vehicle constructed as a machine used to raise, shift, or lower weights when operated intrastate. (5) The maintenance of any type of government form, separate company form, driver's record of duty status, or a driver's daily log is not required if the vehicle is operated within a 150 air mile radius of the normal work reporting location: (A) if the owner has another method by which he keeps, as a business record, date and time of delivery of product or service, and location of delivery of product or service so that a general record of the driver's hours of service may be compiled; or (B) if another law requires or specifies the maintenance of delivery tickets, sales invoices, or other documents which show the date of delivery and quantity of merchandise delivered, so that a general record of the driver's hours of service may be compiled; and (C) provided that the business records generally conform with the following: (i) the time the driver reports for duty each day; (ii) the total number of hours the driver is on duty each day; (iii) the time the driver is released from duty each day; and (iv) the total time for the preceding seven days in accordance with 49 Code of Federal Regulations, sec.395.8, of the Federal Motor Carrier Safety Regulations for drivers used for the first time or intermittently. (6) Drivers who are not transporting hazardous materials and were regularly employed in Texas as an intrastate motor carrier prior to the effective date of this adoption are not required to meet the medical standards contained in the federal regulations. (A) For the purpose of enforcement of this regulation, those drivers who reached their 18th birthday after September 1, 1989, shall be required to meet all medical standards. (B) The exceptions contained in this paragraph shall not be deemed as exempt from drug testing requirements contained in 49 Code of Federal Regulations, Part 391. (d) Exceptions adopted by the commission not specified in Texas Civil Statutes, Article 6701d, sec.139, are as follows. (1) 49 Code of Federal Regulations, sec.393.86, requiring rear end protection shall not be applicable provided the vehicle was manufactured prior to September 1, 1991. (2) Under this section, the Texas Department of Public Safety may provide a waiver for a person who is otherwise disqualified under 49 Code of Federal Regulations, sec.391.41(b)(10), provided the person meets the vision standards adopted by the Texas Department of Public Safety in 37 Texas Administrative Code sec.15.51 (relating to vision tests). (A) Applications for a waiver shall not be accepted by the Texas Department of Public Safety after January 1, 1990. (B) Waivers granted under this paragraph are automatically renewed, provided the applicant continues to meet vision standards adopted by the Texas Department of Public Safety in 37 Texas Administrative Code sec.15.51 (relating to vision tests). (3) Drivers of vehicles under this section operating in intrastate transportation shall not be permitted to drive after having worked and/or driven for 70 hours in any consecutive seven-day period. (4) 49 Code of Federal Regulations, sec.391.(b)(1), is not adopted for intrastate drivers. The minimum age for an intrastate driver shall be 18 years of age. (5) 49 Code of Federal Regulations, sec.391.11(b)(2), is not adopted for intrastate drivers. An intrastate driver must have successfully passed the examination for a Texas driver's license and be a minimum age of 18 years old. (6) 49 Code of Federal Regulations, sec.391.51, pertaining to driver qualification files is effective on and after January 1, 1990. (7) The portions of 49 Code of Federal Regulations, Part 391, pertaining to drug testing requirements, are effective on and after December 21, 1990, for intrastate drivers. (8) Texas Civil Statutes, Article 6701d, sec.132(b) and (c), as it relates to brakes on trailers weighing 15,000 pounds gross weight or less, takes precedence over the brake requirements in the federal regulations for trailers of this gross weight specification. (9) Texas Civil Statutes, Article 6701b-1, concerning identifying markings on commercial motor vehicles, shall take precedence over 49 Code of Federal Regulations, sec.390.21, for vehicles operated in intrastate commerce. (10) Peace officers of any Texas city having a population of 100,000 or more are considered to be certified by the Texas Department of Public Safety and eligible to enforce the Federal Motor Carrier Safety Regulations, provided each officer enforcing the Federal Motor Carrier Safety Regulations must have completed a course of training of which the curriculum and instructors have been approved by the director of the Texas Department of Public Safety. Peace officers requesting certification as required in this paragraph shall submit to the Texas Department of Public Safety a schedule of the courses which have been completed, including identification of the instructor(s). Peace officers certified by the director of the Texas Department of Public Safety shall have the authority to enforce the regulations herein adopted applicable to intrastate drivers and vehicles and all regulations in 49 Code of Federal Regulations, Parts 390-393 and 395-397, applicable to interstate drivers and vehicles. (11) Regulations and exceptions adopted herein are applicable to intrastate drivers and vehicles. All regulations contained in 49 Code of Federal Regulations, Parts 390-393 and 395-397, and all amendments thereto pertaining to interstate drivers and vehicles are adopted. (12) Nothing in this section shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operations and employee safety and health. sec.5.211. Operating Authority. (a) Certificate required. Motor bus companies may provide intrastate regular route passenger service in Texas only to the extent authorized in a certificate issued by the commission after demonstrating a need of public convenience and necessity or by the Interstate Commerce Commission pursuant to 49 United States Code, sec.10922. (b) Duplicative authority prohibited. No motor bus company shall be granted operating authority duplicative of that held by such motor bus company under any existing certificate or permit. If a motor bus company receives additional duplicative authority by sale or transfer, the commission may provide for merger of the duplicative portion of such authority. (c) Sale, assignment, lease, or transfer of operating authority. (1) A certificate or permit may be sold, assigned, leased, or transferred, with the approval of the commission and upon payment of a tax equal to 10% of the amount paid as consideration for the certificate. (2) A person acquiring control over a motor bus company, whether through ownership of stock, merger, consolidation, or otherwise, shall, within 15 days after the day on which control is acquired, file notice of the change in controlling interest with the director. (3) Authority is dormant, and an application to transfer may be denied, if the commission finds that the authority, or any portion thereof, has been inactive for a period of at least three consecutive years, with no resumption of activity for a period of at least one year prior to the filing of the application. If a complaint alleging dormancy is filed against a certificate holder and the authority is shown to be dormant, then the complaint may be sustained and the dormant authority may be cancelled. Nothing in this section shall prohibit the commission from bringing on its own motion a complaint alleging dormancy. (4) A current intrastate operating report covering the operation in that portion of the year immediately preceding the sale, transfer, or lease of a certificate or permit must be furnished by the seller or lessor before final approval of the sale and transfer or lease will be given by the commission. (d) Charter operation. Authority to transport charter or special parties may be obtained by demonstrating a public convenience and necessity for such service. (e) Call and demand; irregular route service. A motor bus company may operate on a call and demand or irregular route basis, or both, provided such service is specifically authorized by its certificate and the service rendered qualifies under one or more of the following conditions: (1) the vehicle used in such service has a seating capacity of not more than 15 persons, including the driver; (2) the origin or destination point is an airport at which regularly schedule airlines depart and arrive; (3) the service rendered is dedicated to transporting handicapped or physically disabled persons, or both, in vehicles designed for the accommodation of wheel chairs; (4) the service rendered is transporting railroad train crews to or from train locations, or both, on rail sidings; or (5) the service rendered is transporting a ship's crew, shipping company personnel, maintenance or repair workmen, and servicing personnel when such transportation is necessary for the health, safety, and welfare of these persons or the operation, maintenance, and repair of oceangoing ships or vessels. (f) Provisions not applicable. A motor bus company that qualifies under any of the provisions of subsection (e) of this section shall not be subject to any regulations within this subchapter to the extent such other regulations would prohibit the special services authorized in this section. (g) Railroad crew motor bus companies. (1) Applications for railroad crew motor bus permits. Applications for contract motor bus permits shall be filed on forms prescribed by the commission. (2) Hearings and proof required. At hearing, in addition to producing the contracts listed in the application, the applicant must demonstrate that it has financial and operating fitness. Any person may protest an application for a railroad crew motor bus permit, subject to a motion to strike, upon a showing that the person has not justiciable or administratively cognizable interest in the application. The possession or operation of a railroad crew motor bus permit shall not alone constitute a justiciable or administratively cognizable interest in the application. (h) Government subsidized or mileage-reimbursed motor bus operations. (1) Exemption of government contract or subsidized motor bus operations. The commission may, upon receipt of a properly filed application on a form prescribed by the commission, issue to a motor bus company a certificate authorizing the transportion of persons, together with such passengers' baggage, where such transportation service is provided pursuant to: (A) a contract between the motor bus company and a governmental body under which compensation for the transportation service is paid exclusively by the governmental body; (B) a grant or other subsidy agreement between the motor bus company and a governmental body under which the governmental body provides a direct operating subsidy to the motor bus company equal to at least one-half of total compensation for the transportation service; or (C) a contract pursuant to Texas Education Code, sec.21.181. (2) Restrictions. Except as to operations conducted under a contract pursuant to Texas Education Code, sec.21.181, operations under a government subsidized motor bus certificate are restricted: (A) to operations over irregular routes on a call-and-demand basis; (B) against transportation of the general public as presently being transported by regular route passenger carriers in direct competition with such carriers. (3) Copy of government subsidized motor bus certificate required in each vehicle. A copy of the government subsidized motor bus certificate must be carried in each vehicle operated under the certificate. Regulated transportation service of the general public is not authorized when provided in a vehicle which does not carry a copy of the certificate. (4) Term of government subsidized motor bus certificate. A government subsidized motor bus certificate shall, unless revoked by the commission, remain effective throughout the duration of the underlying contract or subsidy agreement. (5) Revocation of government subsidized motor bus certificate. The commission may, after notice and hearing, revoke a government subsidized motor bus certificate if the commission determines that the holder violated the terms of its certificate, the provisions of this subchapter, or the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, in effect at the time the violation occurred. (6) Scope of authority. A motor bus company may, under a government subsidized motor bus certificate and notwithstanding any other provision of this subtitle, provide transportation service without: (A) a certificate of public convenience and necessity; (B) commission-authorized routes or schedules; and (C) a tariff of commission-prescribed rates. (7) Certain motor transportation regulations not applicable. A government subsidized or mileage-reimbursed motor bus company providing transportation service pursuant to this subsection shall not be subject to any regulations within this title to the extent such other regulations would prohibit the special services authorized in this section, except for regulations pertaining to insurance and safety. (8) Requests for issuance of a government subsidized motor bus certificate. A motor bus company may request issuance of a government subsidized motor bus certificate by filing with the commission: (A) proof of insurance as required by sec.5.205 of this title (relating to minimum limits of financial responsibility); (B) an equipment report as required by sec.5.221 of this title (relating to equipment registration and cab cards); (C) an executed copy of the involved grant or subsidy agreement or contract, showing the grant or agreement number; (D) where applicable, an affidavit establishing that the governmental body which is a party to the agreement is expected to provide direct operating subsidies to the motor bus company equal to at least one-half of total compensation for the transportation service; and (E) a $25 filing fee. (i) Transportation of Mexican national migratory workers. (1) A motor bus company may transport Mexican national migratory agricultural workers and their baggage under a certificate authorizing such transportation only when each worker has entered into a contract of employment with a farmer or farm organization, arranged by the United States Department of Labor, through its farm placement service, and when the employer of such worker has arranged with the motor bus company for the transportation of such worker and has agreed to pay all applicable transportation fares and charges directly to the motor bus company. (2) Certificates authorizing the transportation of Mexican national migratory agricultural workers shall not be construed to include the authority to transport any such person who is traveling while on furlough or leave of absence during any period of employment under a contract of employment or who tenders payment of the fare in cash. (3) Every motor bus company which operates under a certificate authorizing the transportation of Mexican national migratory agricultural workers shall make and keep records to reflect the following information for each worker or group of workers: (A) the number of such workers transported; (B) the date on which such transportation originated; (C) the points of origin and destination; (D) the amount collected by the motor bus company from the employer for the transportation; (E) the name and address of the employer; and (F) the name and address of the person who tendered payment for the transportation. (j) Rates to be approved. No motor bus company shall begin operations or perform any new service under its operating authority until rates, fares, or charges for the services to be performed shall have been approved by the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507900 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter N. Household Goods Carriers 16 TAC sec.sec.5.251-5.255, 5.257, 5.258 The Railroad Commission of Texas adopts the repeal of sec. sec.5.251-5.255, 5. 257, and 5.258, concerning authority, local representatives, joint transportation between carriers, estimate sheet, inventory on each shipment, deceptive advertising prohibited, and accessorial services, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 851). The commission repeals these sections to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, which authorizes the commission to prescribe rules and regulations for the operations of motor carriers of property. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507882 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter O. Motor Transportation Brokers 16 TAC sec.sec.5.271-5.280 The Railroad Commission of Texas adopts the repeal of sec. sec.5.271-5.280, concerning scope, licenses, applications for license, order on application for issuance of license, bond, suspension or revocation of license, insurance, records, charges for services rendered, and submission of records, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 851). The commission repeals these sections to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to Texas Civil Statutes, Article 911f, which authorize the commission to prescribe rules for the licensing and regulation of motor transportation brokers of fresh fruits and vegetables. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507883 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter P. Commercial Zones 16 TAC sec.sec.5.291-5.294 The Railroad Commission of Texas adopts the repeal of sec. sec.5.291-5.294, concerning designation of commercial zones, factors considered by the commission, restrictions on exemptions, and existing commercial zones, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 852). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507884 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter Q. Miscellaneous Provisions 16 TAC sec.sec.5.301, 5.302, 5.304-5.307, 5.309-5.311, 5.313-5. 317 The Railroad Commission of Texas adopts the repeal of sec. sec.5.301, 5.302, 5. 304-5.307, 5.309-5.311, and 5.313-5.317, concerning procedure, forms, rates, charges, and fares, changes in ownership, possession, or control of certificates or permits, compliance pending approval, voluntary suspensions, reinstatement fee, consolidation of certificate or permit authority, division of certificate or permit authority, effective date, additional regulations concerning utilization, transferability, and suspension of certificate of regular route common carrier motor carriers, approval of agreements between carriers concerning group representation, claims for loss or damage, and cancellation of dormant authority, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 852). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and Title II of the Trucking Industry Regulatory Reform Act of 1994 (Public Law 103-311), and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507885 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter E. Motor Transportation Brokers 16 TAC sec.sec.5.301-5.314 The Railroad Commission of Texas adopts new sec.sec.5.301-5.314, concerning definitions, scope, compliance with laws and regulations, prohibition of unauthorized services, licenses, applications for license, order on application for issuance of license, bond, suspension or revocation of license, insurance, records, submission of records, forms, and procedure, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 853). The commission adopts these sections in light of recent legislative changes to statutes concerning regulation of transportation to reorganize commission rules into concise subchapters for each category of rules. No comments were received regarding adoption of the new sections. The new sections are adopted pursuant to Texas Civil Statutes, Article 911f, which authorize the commission to prescribe rules for the licensing and regulation of motor transportation brokers of fresh fruits and vegetables. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507901 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter R. Registration of Operations Exempt from ICC Regulations 16 TAC sec.sec.5.331, 5.332, 5.334-5.345, 5.347-5.349 The Railroad Commission of Texas adopts the repeal of sec. sec.5.331, 5.332, 5. 334-5.345, and 5.347-5.349, concerning definitions, operations within borders of states, registration of motor carrier operations exempt from economic regulation by the ICC, designation of process agent, identification of vehicles and driveaway operations, form and execution of application for identification stamps, use of cab cards in connection with vehicles not used in driveaway operations, use of cab cards in driveaway operations, inspection of the cab card, destruction of cab cards, alteration of cab card/replacement, identification, evidence of liability security, notice of security cancellation, certificated interstate operations by intrastate carriers, exempt operations by registered carriers, and cancellation of registration, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 855). The commission repeals these sections to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507886 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter S. Specialized Motor Carriers of Mobile Homes 16 TAC sec.5.361 The Railroad Commission of Texas adopts the repeal of sec.5.361, concerning definitions, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 856). The commission repeals this section to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeal. The repeal is adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507887 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter T. Standards for Registration of ICC Motor Carriers 16 TAC sec.sec.5.371-5.381 The Railroad Commission of Texas adopts the repeal of sec. sec.5.371-5.381, concerning participation in the single state registration system, definitions, the registration process, amendments and changes after the initial registration, change of registrant's principal place of business, designation of process agent, proof of insurance, registration receipts, change of name, address, and ownership of registrant, failure to comply, and auditing, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 856). The commission repeals these sections to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507888 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter U. General and Special Rules of Practice and Procedure 16 TAC sec.sec.5.401, 5.402, 5.404, 5.407, 5.411, 5.412, 5.423, 5. 424, 5.431, 5.456-5.464, 5.466, 5.467 The Railroad Commission of Texas adopts the repeal of sec. sec.5.401, 5.402, 5. 404, 5.407, 5.411, 5.412, 5.423, 5.424, 5.431, 5.456-5.464, 5.466, and 5.467, concerning definitions, object of rules, filing of documents, service of notice in nonrulemaking proceedings, parties in interest, appearances personally or by representative, applications to establish or change rates, unprotested proceedings, reporters and transcript, effective date, additional representatives authorized, filing fee accompanying application, document subscriptions, certification of minority-owned applicants, commission survey of fuel prices, certification of disadvantaged businesses for motor carrier and motor bus authority, administrative penalties procedures, filing requirements for applications in authority cases, proposals for decision, and final decisions and orders, without changes to the proposed text as published in the April 25, 1995, issue of the Texas Register (20 TexReg 3077). The commission repeals these sections to reorganize the commission's rules into concise subchapters for each category of the rules. A federal district court in Bilbo Freight Lines, Inc. vs. Morales , Civil Action Number H-93-3808, ruled sec.4 of Senate Bill 1313, 73rd Legislature, unconstitutional. The district court permanently enjoined the commission from issuing any order or operating authority under the commission's rule 16 TAC sec.5.462 which implemented sec.4. The Defendants appealed that ruling to the United States Fifth Circuit Court of Appeals. Subsequently, in light of federal legislation preempting most state economic regulation of motor carriers, the Defendants filed a motion to dismiss, on the basis of mootness. That motion is pending. Depending on the ruling of the appellate court, the commission may consider adoption of proposed new sec.5.714 (currently sec.5.462) or proposed new sec.5.716 (currently sec.5.460) in this issue. The proposed new sec.5.714 will not be implemented or enforced while the injunction remains in effect. The proposed new sec.5.716 is a measure to implement state and commission minority business enterprise policies during the pendency of the court proceedings. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Motor Carrier Act and the Texas Motor Bus Act, Texas Civil Statutes, Articles 911a and 911b, which authorize the commission to prescribe rules and regulations for certain motor carriers and motor bus companies; and Texas Government Code, sec.sec.2001.004 and 2001. 051- 2001.902, which requires state agencies to adopt rules of practice for formal and informal procedures and which specify standards for contested cases. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507896 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: April 25, 1995 For further information, please call: (512) 463-7008 Subchapter F. Registration of Interstate Motor Carriers 16 TAC sec.sec.5.401-5.412 The Railroad Commission of Texas adopts new sec.sec.5.401-5.412, concerning participation in the single state registration system, definitions, the registration process, amendments and changes after the initial registration, change of registrant's principal place of business, designation of process agent, proof of insurance, registration receipts, change of name, address and ownership of registrant, failure to comply, auditing, and registration of motor carrier operations exempt from economic regulation by the ICC, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 857). The commission adopts these sections in light of recent legislative changes to statutes concerning regulation of transportation to reorganize commission rules into concise subchapters for each category of rules. No comments were received regarding adoption of the new sections. The new sections are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507902 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter G. Tow Trucks 16 TAC sec.sec.5.501-5.503, 5.505-5.516 The Railroad Commission of Texas adopts new sec.sec.5.501-5.503 and 5.505-5. 516, concerning authority, definitions, registration requirements, insurance requirements, fees, tow trucks as commercial motor vehicles, inspection and investigation by the commission, denial, revocation, or suspension for a criminal conviction, administrative sanctions, criminal penalty sanctions, general technical requirements, technical requirements for accident scene tow trucks, technical requirements for recovery of vehicles for a lien holder, leases, and assumed business names, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 860). The commission adopts these sections in light of recent legislative changes to statutes concerning regulation of transportation to reorganize commission rules into concise subchapters for each category of rules. No comments were received regarding adoption of the new sections. The new sections are adopted pursuant to Texas Civil Statutes, Article 6687-9b, which authorize the commission to prescribe rules for the licensing and operations of tow trucks. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507903 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 16 TAC sec.5.504 The Railroad Commission of Texas adopts new sec.5.504, concerning exemptions, without changes to the proposed text as published in the February 10, 1995, issue of the Texas Register (20 TexReg 931). The commission adopts this section in light of recent legislative changes to statutes concerning regulation of transportation to reorganize commission rules into concise subchapters for each category of rules. No comments were received regarding adoption of the new section. The new section is adopted pursuant to Texas Civil Statutes, Article 6687-9b, which authorize the commission to prescribe rules for the licensing and operations of tow trucks. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507908 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 10, 1995 For further information, please call: (512) 463-7008 Subchapter X. Agricultural Permits 16 TAC sec.sec.5.534-5.538 The Railroad Commission of Texas adopts the repeal of sec. sec.5.534-5.538, concerning scope of exemption under House Bill 593, definitions of key terms relating to agricultural commodities exemption, procedures for obtaining agricultural permits, grace period for holders of seasonal agricultural permits, and enforcement of regulations governing operations under an agricultural permit, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 866). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507889 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter Z. Base Rates, Deviations, and Suspensions 16 TAC sec.sec.5.581-5.590 The Railroad Commission of Texas adopts the repeal of sec. sec.5.581-5.590, concerning annual review of base rates and charges, deviations from base rates, contract carrier deviations, suspension of deviations, increase or decrease in base rate or charge, procedures for annual base rate adjustment hearings, base rate deviation procedures, procedures for deviation suspension proceedings, publication of deviations, and specific rates and charges, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 866). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507890 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter H. Vehicle Storage Facilities 16 TAC sec.sec.5.601, 5.603-5.620 The Railroad Commission of Texas adopts new sec.sec.5.601, 5.603-5.605, and 5. 607-5.620, concerning authority, licensing requirements, exemptions, insurance requirements, responsibilities of the licensee-storage requirements, responsibilities of the licensee-documentation, responsibilities of the licensee-vehicle transfers, fees-original license, fees-renewal license, fees- duplicate license, sanctions-administrative sanctions, sanctions-administrative penalty/fine, sanctions-injunctive relief and civil penalty, sanctions-criminal penalty, sanctions-revocation or suspension because of a criminal conviction, technical requirements, technical requirements-storage fees/charges, and technical requirements-other statutes and administrative rules, city ordinances. Section 5.606, concerning responsibilities of the licensee-accepting vehicles for storage, is adopted with changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 867). Sections 5.601, 5.603-5.605, and 5.607-5.620 are adopted without changes and will not be republished. The commission adopts these sections in light of recent legislative changes to statutes concerning regulation of transportation to reorganize commission rules into concise subchapters for each category of rules. Within new sec.5.606(g)(6), the citation to Texas Civil Statutes, Article 6701g, is being changed to Texas Civil Statutes, Article 6701g-3, which is the correct citation of the statute addressing the rights of the owner of a stored vehicle. No comments were received regarding adoption of the new sections. The new sections are adopted pursuant to the Texas Storage Facility Act, Texas Civil Statutes, Article 6687-9a, which authorize the commission to prescribe rules for the licensing and operations of vehicle storage facilities. sec.5.606. Responsibilities of the Licensee-Accepting Vehicles for Storage. (a) When the licensee, his agent, or his employee accepts a vehicle towed without the vehicle owner's consent, he shall inspect the vehicle and note as an addition on the wrecker slip or wrecker ticket any differences from the information previously set out thereon, but shall not write over or deface any prior writing on the slip or ticket. If the license plate number or vehicle identification number on the wrecker ticket or wrecker skip was incorrect, the storage facility shall note on its records the correct number and notify every previously advised person within 48 hours of noting the correct information. (b) After accepting for storage a vehicle registered in Texas, the vehicle storage facility must notify the vehicle's last registered owner and all recorded lienholders by certified/registered mail within five days, but in no event sooner than within 24 hours of receipt of the vehicle. If the certified/registered letter is returned unclaimed, refused, or moved, left no forwarding address, publication in a newspaper is not required. If the identity of the last registered owner cannot be determined, if the registration contains no address for the owner, or if it is impossible to determine with reasonable certainty the identity and address of all lienholders, notice in one publication in one newspaper of general circulation in the area where the vehicle was towed from is sufficient. (c) After accepting for storage a foreign registered vehicle, the vehicle storage facility must notify the vehicle's last registered owner and all recorded lienholders by certified/registered mail within 14 days, but in no event sooner than within 24 hours of receipt of the vehicle. If the certified/registered letter is returned unclaimed, refused, or moved, left no forwarding address, publication in a newspaper is not required. If the identity of the last registered owner cannot be determined, if the registration contains no address for the owner, or if it is impossible to determine with reasonable certainty the identity and address of all lienholders, notice in one publication in one newspaper of general circulation in the area where the vehicle was towed from is sufficient. (d) It shall be a defense to an action initiated by the commission for violation of this section that the facility has attempted, in writing, but been unable to obtain information from the foreign registry department. (e) The vehicle storage facility operator may not charge an owner more than $25 for this notification. However, if a vehicle is removed by the owner within 24 hours after the date the operator receives the vehicle, then no notification is required under this section, and no notification fee may be charged to the owner by the vehicle storage facility operator. (f) Notification will be considered to have occurred when the United States Postal Service places its postmark upon the written notice. (g) All notifications shall state: (1) the full name of the vehicle storage facility where the motor vehicle is located, its street address and telephone number, and the hours the vehicle can be released to the vehicle owner; (2) the daily storage rate, the type and amount of all other charges assessed, and the total amount of fees which must be paid before the vehicle will be released; (3) if the operator will be transferring a vehicle to a second lot if it is not claimed within a certain time period, the date the vehicle will be moved from the vehicle storage facility and the address to which it will be moved; (4) the date the vehicle was accepted for storage and from where, when, and by whom the vehicle was towed; (5) the vehicle storage facility number preceded by the words "Railroad Commission of Texas Vehicle Storage Facility License Number"; and (6) a notice of the towed vehicle owner's right under Texas Civil Statutes, Article 6701g-3, to challenge the legality of the tow involved. (h) A vehicle storage facility accepting a non-consent towed vehicle towed from private property must report that tow to the local law enforcement agency from the area where the vehicle was towed. This report must be made within two hours of receiving the vehicle, giving the vehicle's license plate number and issuing state, vehicle identification number, and location from which it was towed. Facility records must indicate specifically to whom the stated information was reported and in what manner, as well as the time and date of the report. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507904 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 16 TAC sec.5.602 The Railroad Commission of Texas adopts new sec.5.602, concerning definitions, without changes to the proposed text as published in the February 10, 1995, issue of the Texas Register (20 TexReg 932). The commission adopts this section in light of recent legislative changes to statutes concerning regulation of transportation to reorganize commission rules into concise subchapters for each category of rules. No comments were received regarding adoption of the new section. The new section is adopted pursuant to Texas Civil Statutes, Article 6687-9a, which authorize the commission to prescribe rules for the licensing and operations of vehicle storage facilities. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507909 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 10, 1995 For further information, please call: (512) 463-7008 Subchapter AA. Rail Safety 16 TAC sec.sec.5.611-5.618, 5.620, 5.621, 5.625 The Railroad Commission of Texas adopts the repeal of sec. sec.5.611-5.618, 5. 620, 5.621, and 5.625, concerning clearances of structures over and alongside railway tracks, reports of railroad accidents/incidents, railroad safety requirements, right to inspect railroad property, enforcement of railroad safety requirements, reporting/filing requirements, safety equipment, wayside detector map, list or chart, visual obstructions at public grade crossings, severability clause, and hazardous materials reporting requirements, without changes to the proposed text as published in the April 18, 1995, issue of the Texas Register (20 TexReg 2762). The commission repeals these sections to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to Texas Civil Statutes, Title 112, Articles 6259, et seq, which authorize the commission to prescribe rules and regulations for the safe operation of railroads in this state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507895 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: April 18, 1995 For further information, please call: (512) 463-7008 Subchapter BB. Miscellaneous Provisions for Commercial Motor Vehicles 16 TAC sec.5.701 The Railroad Commission of Texas adopts the repeal of sec.5.701, concerning violations by owners or operators of commercial motor vehicles, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 872). The commission repeals this section to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeal. The repeal is adopted pursuant to Texas Civil Statutes, Article 6701d, which authorize the commission to prescribe rules and regulations regarding of commercial carriers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507891 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter I. General and Special Rules of Practice and Procedure 16 TAC sec.sec.5.701-5.721 The Railroad Commission of Texas adopts new sec.sec.5.701-5.721, concerning definitions, object of rules, filing of documents, service of notice in nonrulemaking proceedings, parties in interest, appearances personally or by representative, applications to establish or change rates, unprotested proceedings, reporters and transcript, effective date, additional representatives authorized, filing fee accompanying application, document subscriptions, certification of minority-owned applicants, commission survey of fuel prices, certification of disadvantaged businesses for motor carrier and motor bus authority, administrative penalties procedures, filing requirements for applications in authority cases, proposals for decision, final decisions and orders, and statement of philosophy, without changes to the proposed text as published in the April 25, 1995, issue of the Texas Register (20 TexReg 3078). The commission adopts these sections to reorganize the commission's rules into concise subchapters for each category of the rules. A federal district court in Bilbo Freight Lines, Inc. vs. Morales , Civil Action Number H-93-3808, ruled sec.4 of Senate Bill 1313, 73rd Legislature, unconstitutional. The district court permanently enjoined the commission from issuing any order or operating authority under the commission's rule 16 TAC sec.5.462 which implemented sec.4. The Defendants appealed that ruling to the United States Fifth Circuit Court of Appeals. Subsequently, in light of federal legislation preempting most state economic regulation of motor carriers, the Defendants filed a motion to dismiss, on the basis of mootness. That motion is pending. Depending on the ruling of the appellate court, the commission may consider adoption of proposed new sec.5.714 (currently sec.5.462) or proposed new sec.5.716 (currently sec.5.460). The proposed new sec.5.714 will not be implemented or enforced while the injunction remains in effect. The proposed new sec.5.716 is a measure to implement state and commission minority business enterprise policies during the pendency of the court proceedings. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Articles 911a and 911b, which authorize the commission to prescribe rules and regulations for certain motor carriers and motor bus companies; and under Texas Government Code, sec.sec.2001.004 and 2001.051-2001.902, which requires state agencies to adopt rules of practice for formal and informal procedures and which specify standards for contested cases. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507911 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: April 25, 1995 For further information, please call: (512) 463-7008 Subchapter CC. Tow Trucks 16 TAC sec.sec.5.801-5.819 The Railroad Commission of Texas adopts the repeal of sec. sec.5.801-5.819, concerning authority, definitions, registration requirements, exemptions, insurance requirements, fees, tow trucks as commercial motor vehicles, inspection and investigation by the commission, denial, revocation, or suspension for a criminal conviction, administrative sanctions, criminal penalty sanctions, general technical requirements, technical requirements for accident scene tow trucks, technical requirements for recovery of vehicles for a lien holder, leases, assumed business names, technical requirements-accident scene tow trucks, technical requirements-repossession/recovery tow trucks, and technical requirements-other statutes and administrative rules, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 872). The commission repeals these sections to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Tow Truck Act, Texas Civil Statutes, Article 6687-9b, which authorize the commission to prescribe rules for the licensing and operations of tow trucks. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507892 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter J. Rail Safety 16 TAC sec.sec.5.801-5.811 The Railroad Commission of Texas adopts new sec.sec.5.801-5.811, concerning clearances of structures over and alongside railway tracks, reports of railroad accidents/incidents, railroad safety requirements, right to inspect railroad property, enforcement of railroad safety requirements, reporting/filing requirements, safety equipment, wayside detector map, list or chart, visual obstructions at public grade crossings, severability clause, and hazardous materials reporting requirements, without changes to the proposed text as published in the April 18, 1995, issue of the Texas Register (20 TexReg 2763). The commission adopts these sections to reorganize commission rules into concise subchapters for each category of rules. No comments were received regarding adoption of the new sections. The new sections are adopted pursuant to Texas Civil Statutes, Title 112, Articles 6259, et seq, which authorize the commission to prescribe rules and regulations for the safe operation of railroads in this state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507910 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: April 18, 1995 For further information, please call: (512) 463-7008 Subchapter DD. Vehicle Storage Facilities 16 TAC sec.sec.5.901-5.920 The Railroad Commission of Texas adopts the repeal of sec. sec.5.901-5.920, concerning authority, definitions, licensing requirements, exemptions, insurance requirements, responsibilities of the licensee-accepting vehicles for storage, responsibilities of the licensee-storage requirements, responsibilities of the licensee-documentation, responsibilities of the licensee-vehicle transfers, fees-original license, fees-renewal license, fees-duplicate license, sanctions- administrative sanctions, sanctions-administrative penalty/fine, sanctions- injunctive relief and civil penalty, sanctions-criminal penalty, sanctions- revocation or suspension because of a criminal conviction, technical requirements, technical requirements-storage fees/charges, and technical requirements-other statutes and administrative rules, city ordinances, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 873). The commission repeals these sections to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Vehicle Storage Facility Act, Texas Civil Statutes, Article 6687-9a, which authorize the commission to prescribe rules for the licensing and operations of vehicle storage facilities. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507893 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 Subchapter EE. Operating Certificates, Permits, and Licenses 16 TAC sec.sec.5.1001-5.1005, 5.1013-5.1015, 5.1018-5.1020 The Railroad Commission of Texas adopts the repeal of sec. sec.5.1001-5.1005, 5.1013-5.1015, and 5.1018-5.1020, concerning compliance with laws and regulations, prohibition of unauthorized services, call and demand service, use of highways, pick-up and delivery service, contract carriers, duplication of operating authority, joinder of motor carrier certificates, cancellation, suspension and reinstatement of intrastate certificates or permits, address for receipt of service, and intercorporate transportation exemption, without changes to the proposed text as published in the February 7, 1995, issue of the Texas Register (20 TexReg 874). The commission repeals these sections to eliminate rules that are unnecessary or that have been preempted by the enactment of Title VI of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103-305), effective January 1, 1995, and to reorganize the commission's rules into concise subchapters for each category of the rules. No comments were received regarding adoption of the repeals. The repeals are adopted pursuant to the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b and the Texas Motor Bus Act, Texas Civil Statutes, Article 911a, which authorize the commission to prescribe rules and regulations for the operations of motor carriers of property and passengers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507894 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: July 18, 1995 Proposal publication date: February 7, 1995 For further information, please call: (512) 463-7008 TITLE 22. EXAMINING BOARDS Part VI. Texas State Board of Registration for Professional Engineers Chapter 131. Practice and Procedure Application for Registration 22 TAC sec.131.55 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.55, concerning application for registration from nonresidents, without changes to the proposed text as published in the May 12, 1995, issue of the Texas Register (20 TexReg 3544). The rule as amended requires that an applicant who is a nonresident of Texas must furnish an official verification that he or she possesses a current and valid certificate of registration or license issued by another appropriate licensing board. Applicants from foreign countries must furnish official verification that their registration or charter is current and valid. The rule as amended provides clarification of the requirements for application for registration from nonresidents. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507805 John R. Speed, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1995 Proposal publication date: May 12, 1995 For further information, please call: (512) 440-7723 References 22 TAC sec.131.71 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.71, concerning reference statements, with changes to the proposed text as published in the May 12, 1995, issue of the Texas Register (20 TexReg 3544). The rule is adopted with changes to the original proposal in order to cross reference the detailed explanation contained in the section pertaining to the educational requirements for registration rather than the statute. The rule as amended stipulates that reference statements must be provided for at least the last four years of engineering experience if an applicant holds a degree which is defined as an approved curriculum in accordance with the educational requirements for registration; otherwise, reference statements covering at least the last eight years of engineering experience must accompany an application for registration. If an individual is requesting an exemption from either or both engineering examinations, then reference statements covering the last twenty years of engineering experience must be provided. The rule as amended provides for clarification and streamlining of the registration process. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.131.71. Reference Statements. (a) The applicant, as a part of the application for registration, shall send a copy of the board's reference statement form and a copy of the portion of the applicant's supplementary experience record (SER) that the reference is to verify to a minimum of five references of which three must be professional engineers. The reference writer should complete the reference statement, sign the copy of the SER signifying agreement with the information written by the applicant, and place the completed reference statement and signed SER in an envelope. After sealing the envelope, the reference writer's signature and professional engineer's number, if applicable, shall be placed across the sealed flap of the envelope and covered with transparent tape. The reference writer shall return the sealed envelope to the applicant. The applicant must enclose all of the sealed reference envelopes with his application when he submits it to the office of the board. An application received without the required references, or with envelopes that have evidence of tampering, shall be considered an incomplete application and returned to the applicant. At least one reference statement should be provided concerning the work done for each employer. References shall be provided for at least the last four years of engineering experience for applicants who hold a degree or degrees defined as an approved curriculum in accordance with sec.131.91(a) of this title (relating to Educational Requirements for Registration), and at least the last eight years of engineering experience for other applicants. Persons requesting exemption from either or both examinations shall provide references for the last 20 years of engineering experience. The reference should have personal knowledge of the applicant's work for which he is providing a reference statement. Accurate statements of fact from responsible sources concerning the applicant's technical abilities and performance are necessary as are frank and candid appraisals of his character, reputation, and suitability for professional registration. (b)-(c) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507806 John R. Speed, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1995 Proposal publication date: May 12, 1995 For further information, please call: (512) 440-7723 Education 22 TAC sec.131.92 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.92, concerning foreign degrees, without changes to the proposed text as published in the May 12, 1995, issue of the Texas Register (20 TexReg 3545). The rule as amended deletes the requirement that an applicant with a foreign degree must submit a certified copy or documented proof of all engineering degrees, diplomas, certificates, etc, with an application for registration. These documents are not required because official transcripts must be provided to the board in accordance with the requirements of sec.131.93 concerning transcripts. The rule as amended provides clear and concise requirements pertaining to applications for registration submitted from applicants with foreign degrees. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507807 John R. Speed, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1995 Proposal publication date: May 12, 1995 For further information, please call: (512) 440-7723 Examinations 22 TAC sec.131.101 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.101, concerning engineering examinations required for registration as a professional engineer, with changes to the proposed text as published in the May 12, 1995, issue of the Texas Register (20 TexReg 3545). The rule as amended establishes that the agency's deadline for scheduling an examination is seven weeks prior to the examination date. Although there are no changes to the original proposal in subsection (c) of the section, the agency is inserting a word to clarify that the examination schedules are prepared ten years in advance by the National Council of Examiners for Engineering and Surveying not the examinations. The rule as amended provides clear and concise requirements for scheduling examinations. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.131.101. Engineering Examinations Required for Registration as a Professional Engineer. (a)-(b) (No change.) (c) All examinations will be in the English language. Examination schedules are prepared by the National Council of Examiners for Engineering and Surveying (NCEES) for ten years in advance and are subject to change only by NCEES. To schedule either examination, an individual may telephone, write or visit the board office to obtain the necessary forms and information. Students may obtain the scheduling forms for the fundamentals of engineering examination at their college or from the board office. Individuals who plan to take an examination must have their completed examination request form and the appropriate fee in the board office or have their request and fee postmarked no later than seven weeks prior to the scheduled examination date. (d) -(g) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507808 John R. Speed, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1995 Proposal publication date: May 12, 1995 For further information, please call: (512) 440-7723 Professional Conduct and Ethics 22 TAC sec.131.156 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.156, concerning an engineer's responsibility to the engineering profession, without changes to the proposed text as published in the May 12, 1995, issue of the Texas Register (20 TexReg 3547). The rule as amended stipulates that a professional engineer shall not violate federal, state and local statutes, regulations, rules or ordinances when providing engineering services. The rule provides clarification of what constitutes a violation relative to engineering services. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507809 John R. Speed, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: July 18, 1995 Proposal publication date: May 12, 1995 For further information, please call: (512) 440-7723 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 57. Fisheries Shrimp 31 TAC sec.57.661 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, June 1, 1995, adopted an amendment to sec.57.661, concerning shrimp management, without changes to the proposed text as published in the April 28, 1995, issue of the Texas Register (20 TexReg 3132). In March 1994, the Parks and Wildlife Commission directed staff to develop a limited entry plan for the Texas bay shrimp fishery. Senate Bill 750, enacted by the 74th Texas Legislature, established the guidelines for the limited entry plan. This management initiative lays the foundation for reassessing all traditional fishing effort restrictions currently in place on the shrimp fishery, with the goal of achieving optimum yield. In light of this new management approach in the Texas trawl fishery, it is appropriate to rescind the 1 1/2-inch mesh change which was to take effect September 1, 1995, and to reassess management needs in the trawl fishery. The amendment rescinds the 1 1/2-inch mesh size requirement scheduled to be implemented September 1, 1995, for commercial bait shrimp trawls, commercial bay shrimp trawls, and commercial gulf trawls used to catch seabobs. Mesh size requirements revert to those as authorized by Parks and Wildlife Code, Chapter 77. The department received no comments regarding the proposed amendment. The amendment is adopted under authority of Parks and Wildlife Code, sec.77. 007, which authorizes the Commission to regulate the catching, possession, purchase and sale of shrimp. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 23, 1995. TRD-9507760 Paul M. Shinkawa Acting General Counsel Texas Parks and Wildlife Department Effective date: July 17, 1995 Proposal publication date: April 28, 1995 For further information, please call: (512) 389-4642 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 91. Discipline and Control Control 37 TAC sec.91.59, sec.91.63 The Texas Youth Commission (TYC) adopts amendments to sec.91.59, concerning use of force and sec.91.63, concerning mechanical restraint equipment, without changes to the proposed text as published in the May 23, 1995, issue of the Texas Register (20 TexReg 3825). The justification for amending the sections is to increase safety for the driver, passengers, and the public when TYC youth are being transported. The amendments require TYC staff to place youth in approved ankle cuffs during transportation to a high or maximum restriction program, and allow TYC staff to place youth in approved equipment to restrict movement during transportation when the behavior of the youth prior to or during transportation leads staff to believe the youth will attempt to escape or engage in violent behavior or self harm. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rules implement the Human Resource Code, sec.61.034. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507786 Steve Robinson Executive Director Texas Youth Commission Effective date: July 18, 1995 Proposal publication date: May 23, 1995 For further information, please call: (512) 483-5244 37 TAC sec.91.65 The Texas Youth Commission (TYC) adopts an amendment to sec.91.65, concerning security unit, without changes to the proposed text as published in the May 23, 1995, issue of the Texas Register (20 TexReg 3825). The justification for amending the section is to have a more efficient system of admitting youth to the security unit in TYC facilities. The amendment will clarify that a Youth Activity Supervisor III or IV position employee who has been designated by the superintendent and trained in security unit placement policy, may be responsible for admitting a youth to the security unit in a TYC training school. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rule implements the Human Resource Code, sec.61.034. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507787 Steve Robinson Executive Director Texas Youth Commission Effective date: July 18, 1995 Proposal publication date: May 23, 1995 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part XIX. Texas Department of Protective and Regulatory Services Chapter 708. Medicaid Targeted Case Management Program Program Requirements 40 TAC sec.708.4, sec.708.5 The Texas Department of Protective and Regulatory Services (TDPRS) adopts an amendment to sec.708.4 and new sec.708.5, without changes to the proposed text as published in the May 12, 1995, issue of the Texas Register (20 TexReg 3567). The justification for the amendment and new section is to clarify TDPRS's targeted case management sections and make the sections consistent with the approved Medicaid state plan amendment. The targeted case management program serves Medicaid recipients who are receiving foster care, child protective services, adoption assistance, or adult protective services. Targeted case management services include assessment, case planning, case coordination, and case plan reassessment. The amendment and new section will function by ensuring the continued receipt of federal funds available for TDPRS programs. No comments were received regarding adoption of the amendment and new section. The amendment and new section are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; under Texas Civil Statutes, Article 4413 (503), which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS; and under Texas Civil Statutes, Article 4413(502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment and new section implement TDPRS's response to the SB-5, General Appropriations Act, 73rd Legislature, Regular Session, Article V, Section 154 (Texas Performance Review Riders). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 27, 1995. TRD-9507862 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Effective date: August 1, 1995 Proposal publication date: May 12, 1995 For further information, please call: (512) 450-3765