16 TAC §103.10, §103.11
The Texas Motor Vehicle Board adopts new §103.10, Brokering,
New Motor Vehicles, and §103.11, Brokering, Used Motor Vehicles, to clarify
the Board's policies and guidelines concerning brokering of motor vehicles,
as published in the December 24, 1999, issue of the
Texas Register
(24 TexReg 11658). The sections are adopted without changes
and will not be republished.
The new sections describe how an entity may operate and not be in violation
of the brokering provisions of §5.03 of the Texas Motor Vehicle Commission
Code (Code)(Article 4413(36) Vernon's Texas Civil Statutes).
The effect of the rules will be a clearer understanding of what activities
are prohibited under §5.03 of the Code.
Section 103.10 was originally published in the August 20, 1999, issue of
the
Texas Register
(24 TexReg 6419). In response
to comments, the proposal was withdrawn and republished as new §103.10
and §103.11 in the December 24, 1999, issue of the
Texas Register
(24 TexReg 11658).
Subsequent to the August 20, 1999
Texas Register
publication of the proposed rule, written comments were received,
in support of the rule but offering some editing suggestions. In opposition,
comments were received stating that if the proposed rule was adopted, local
governments wishing to save tax dollars would be unable to use the current
cooperative purchasing programs. Further, that the rule imposes additional
burdens, conditions and restrictions on dealers in excess of the statutory
definition.
Against: City of Texas City, Texas; Brown, McCarroll & Oaks Hartline,
LLP.
For: Texas Automobile Dealers Association (TADA); Internet Auto Dealers
Marketing Association (IADMA)(with clarification).
Following the December 24, 1999 publication of the proposed rules in the Texas Register
(24 TexReg 11657), written comments
were received in support of the rule for its lending better understanding
of the broker prohibition and its enforcement. Written comments in opposition
to the rules were received, arguing that the proposed rules gave an overly
broad interpretation to the term "broker", would limit severely or eliminate
altogether a city's ability to purchase new motor vehicles through a cooperative
purchasing program, would impose additional burdens, conditions and restrictions
in excess of the statutory definition, thus usurping the function of the legislature,
and did not achieve the intended goal.
Against: Ford Motor Company; City of Round Rock, Texas; Brown McCarroll &
Oaks Hartline, LLP.
At the public hearing on February 3, 2000, comments were received stating
that the proposed rule would protect the buyer from irresponsible brokers,
would provide greater customer service, would not inhibit competitive shopping
and would provide additional clarification of definitions in the Code with
regard to brokers.
Comments in opposition to the rule were that the rule would usurp the legislature's
province of statutory definition, that it was outside the Motor Vehicle Commission
Code and that it would inhibit small governmental purchasers from obtaining
competitive pricing.
Against: Ford Motor Company, by Baker & Hostetler, Billy Donley, Esq.
For: Texas Automobile Dealers Association (TADA), Karen Coffey, General
Counsel; Don Hewlett Chevrolet-Oldsmobile, Don Hewlett; Nichols Ford, Ken
Nichols; Cardenas Motors, Andrew Hagan.
The Board neither agreed nor disagreed with the comments but only sought
clarification of the positions of those commenting.
The new rules are adopted under the Texas Motor Vehicle Commission
Code, §3.06, which provides the Board with authority to adopt rules as
necessary and convenient to effectuate the provisions of this act. Texas Motor
Vehicle Commission Code Section 5.03 is affected by the new rules.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 7, 2000.
TRD-200002454
Brett Bray
Director
Texas Motor Vehicle Board
Effective date: April 27, 2000
Proposal publication date: December 24, 1999
For further information, please call: (512) 416-4899