TITLE 37.PUBLIC SAFETY AND CORRECTIONS

Part 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

Chapter 15. DRIVERS LICENSE RULES

Subchapter B. APPLICATION REQUIREMENTS--ORIGINAL, RENEWAL, DUPLICATE, IDENTIFICATION CERTIFICATES

37 TAC §15.48

The Texas Department of Public Safety proposes new §15.48, providing for the optional registration for the United States Selective Service by driver license and identification certificate holders who are at least 18 but less than 26 years of age. The new section is the result of the enactment of Texas House Bill 116, Acts 2001, 77th Legislature, Regular Session, chapter 973, §2, and complies with the requirement that the department develop by rule a selective service consent statement. This section also establishes how these transactions will occur in driver license offices or by other alternative transactions.

The new section defines the age group for applicants that should be considered eligible for selective service registration; places in rule, as stated in statute, that an applicant meeting the age requirements must either consent or decline registration in order to complete a transaction; defines how the Selective Service Consent form will be provided to the applicant either in the driver license office or by an alternative transaction process; places the responsibility on the applicant to ensure that the appropriate response has been recorded by the department; and establishes that the Selective Service Consent form will contain information related to the benefits and penalties associated with the consent or declination of registration with the United States Selective Service. The new section also places in rule, as stated in statute, that only those transactions indicating an affirmative registration response will be sent to the United States Selective Service.

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

Mr. Haas also has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of enforcing the rule will be the opportunity of providing selective service registration during driver license transactions. There is no anticipated adverse economic effect on individuals, small businesses, or micro-businesses. The cost to those individuals required to comply with the section as proposed will be the actual cost of the driver license or identification certificate.

Comments on the proposal may be submitted to Frank Elder, Assistant Chief, Driver License Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas 78773-0380, (512) 424-2584.

The new section is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work and Texas Transportation Code, §521.005.

Texas Government Code, §411.004(3) and Texas Transportation Code, §521.005 are affected by this proposal.

§15.48.Optional Selective Service Registration.

(a) Applicants for a driver license or identification certificate, who are at least 18 but less than 26 years of age, will be provided the opportunity to register for the United States Selective Service.

(b) Registration for this program is optional; however, either an affirmative or declination response is necessary in order to complete the transaction either in the office or via an alternate transaction method.

(c) Applicants completing a transaction in a Driver License Office will be provided a Selective Service Consent statement. The applicant's response will be recorded and become a part of the driver history record. This response will also be printed on the applicant's receipt upon completion of the transaction. It is the applicant's responsibility to verify that the correct response has been recorded, as this is the only indicator the applicant will receive from the department.

(d) Applicants invited to complete a transaction by an alternate method will receive the Selective Service Consent statement with the mailed notice.

(1) Applicants completing a transaction via the Internet must verify their response as recorded on the confirmation page as this is the only indicator they will receive from the Department.

(2) Applicants completing a transaction via the mail must indicate their response on the notice returned to the department. No confirmation of the applicant's response will be returned by the department.

(3) Applicant completing a transaction via the telephone will not receive a confirmation of their response from the department.

(e) The Selective Service Consent statement will provide the benefits and penalties associated with consent or declination to register with the United States Selective Service.

(f) Only those transactions indicating a consent to selective service registration will be forwarded to the United States Selective Service.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 26, 2002.

TRD-200202563

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 424-2135


Subchapter C. EXAMINATION REQUIREMENTS

37 TAC §15.51, §15.59

The Texas Department of Public Safety proposes amendments to §15.51, and §15.59, regarding Examination Requirements.

Amendment to §15.51 refers commercial driver license applicants to the appropriate section in Chapter 16; clarifies the rule by eliminating "case C score" and "case E score" and adding the appropriate visual acuity that must be met; reformats paragraph (2)(D) as new paragraph (3) to keep it from being confused as part of the one-eyed vision standard; and renumbers current paragraph (3) as new paragraph (4).

Amendment to §15.59 excludes the holder of a commercial driver license from utilizing an alternative method for obtaining a duplicate commercial driver license.

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

Mr. Haas also has determined that for each year of the first five-years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be a better explanation of vision standards and compliance with statute that CDL holders only have one CDL in possession. This change allows for the surrender or invalidation of the current CDL prior to reissuance. There is no anticipated adverse economic effect on individuals, small businesses, or micro-businesses. The cost to individuals who are required to comply with this section will be the actual cost of the driver license.

Comments on the proposal may be submitted to Frank Elder, Assistant Chief, Driver License Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas 78773-0380, (512) 424-2584.

The amendments are proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work and Texas Transportation Code, §521.005.

Texas Government Code, §411.004(3) and Texas Transportation Code, §521.005 are affected by this proposal.

§15.51.Vision Tests.

Applicants applying for a Texas driver [ drivers ] license must meet the following vision standards : (For Commercial Driver License (CDL) vision standards refer to §16.8 of this title (relating to Qualifications To Drive in Interstate Commerce) and §16.9 of this title (relating to Qualifications To Drive in Intrastate Commerce)) [ set by the department of public safety. ]

(1) The standards for two-eyed vision are as follows:

(A) - (C) (No change.)

(D) without corrective lenses, 20/50 or better with best eye or both together [ case (C) score ] with specialist's statement that vision cannot be improved: no visual restriction;

(E) (No change.)

(F) without corrective lenses, 20/60 or 20/70 with best eye or both together [ case (E) score ] with specialist's statement that vision cannot be improved: no visual restriction, daytime only, 45 miles per hour speed limit, any other advisable restriction;

(G) (No change.)

(2) The standards for one-eyed vision are as follows:

(A) - (C) (No change.)

(3) [ (D) ] for driver licensing purposes, an acuity score of worse than 20/200, with corrective lenses or specialist's statement that improvement of 20/200 or better is not possible: is considered blind.

(4) [ (3) ] Color blindness is checked on all original applicants.

§15.59.Alternate Methods For Driver License Transactions.

(a) - (d) (No change.)

(e) The following identification certificate holders will not be considered eligible to renew or duplicate their certificate and the following driver license holders will not be considered eligible to duplicate their license by an alternate method:

(1) - (4) (No change.)

(5) any applicant that to the best of the department's knowledge has an outstanding warrant or capias on file by a DPS officer ; or [ . ]

(6) any applicant that holds a commercial driver license.

(f) - (i) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 26, 2002.

TRD-200202562

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 424-2135


Subchapter I. RELEASE OF DRIVER RECORD INFORMATION

37 TAC §§15.141 - 15.148

The Department of Public Safety proposes new Subchapter I, §§15.141 - 15.148, concerning the Release of Driver Record Information. These sections are in response to the passage of Texas House Bill 1544, Acts 2001, 77th Legislature, Regular Session, chapter 1032, which establishes new requirements on entities receiving personal information from the department and creates new penalties for violations of Texas Transportation Code, Chapter 730.

The new sections for Subchapter I are as follows:

Section 15.141 establishes that an agreement must be in effect between the department and a person or entity before information may be released. Any violation of the terms of the agreement will result in the termination of the agreement and the loss of the recipient's eligibility to receive this information.

Section 15.142 establishes the department's Agreement Form, a review of eligibility and the required information that will be contained in the agreement.

Section 15.143 re-enforces the requirement of state and federal statute that recipients of this information may only re-disclose this information to those persons or entities that are qualified by state and federal statute to receive this information. Failure to do so will result in the cancellation of the agreement and possible criminal charges.

Section 15.144 clarifies the statutory requirements of maintaining records of any resale or re-disclosure of this information to another party.

Section 15.145 clarifies the statutory requirements of persons or entities receiving this information from the department to provide records of those transactions to the department for review and compliance with statute and the agreement. Any violation will result in the cancellation of the agreement.

Section 15.146 establishes that upon determination that a violation of the agreement has occurred and the agreement has been cancelled, that person or entity cannot enter into subsequent agreements to receive driver record information. This section also defines an entity.

Section 15.147 requires that entities receiving driver record information via an interactive system must provide the information required under §15.144 in an electronic format. Further advises that a maximum number of daily transactions will be stipulated in the agreement.

Section 15.148 establishes the requirements for the individual release of driver record information.

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

Mr. Haas also has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be assistance in assuring that the release of driver record information is in compliance with the statutory requirements of Texas Transportation Code, Chapter 730. There is no anticipated economic cost to individuals, small business or micro-businesses.

Comments on the proposal may be submitted to Frank Elder, Assistant Chief, Driver License Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas 78773-0300, (512) 424-2768.

The new sections are proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work and Texas Transportation Code, §730.014.

Texas Government Code, §411.004(3) and Texas Transportation Code, §730.014 are affected by this proposal.

§15.141.Bulk Requests for Driver Record Information.

(a) The department will release personal information to qualified requestors only after a written agreement has been signed by both parties.

(b) The terms of the agreement must be strictly adhered to.

(c) Any violation of any clause or term of the agreement will result in the termination of the agreement and the loss of the requestor's ability to receive driver record information from the department.

§15.142.Agreement to Purchase Driver Record Information.

(a) The department approved Agreement Form will be used by all parties desiring to purchase driver record information.

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

(c) The agreement will require the following information:

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

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

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

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

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

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

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

§15.143.Re-disclosure to Third Parties.

(a) The recipient is responsible to ensure that any party to which they release the driver record information complies with all federal and state laws on the release of the information. This would include requiring each party to certify that he/she will only release information to other third parties who meet a permissible use and who will certify to release driver record information to only other parties that meet this requirement.

(b) If it is determined by the department that an improper disclosure of personal information has been made by any party that directly or indirectly obtained the driver record information from the recipient, the recipient's agreement with the department will be canceled.

§15.144.Records to be Maintained by Recipients.

(a) The recipient must maintain records as to any resale or re-disclosure of driver record information to another party.

(b) The records must be maintained for 5 years and must include:

(1) The name of any person or entity to whom the re-disclosure was made;

(2) The permitted use for which the information was released;

(3) Any documents demonstrating an agreement limiting further re-disclosures;

(4) Contact information for the person or entity the record was released to.

§15.145.Department Review of Recipient's Records.

(a) The department has the statutory authority to request and review the recipient's records required in §15.144 of this title (relating to Records to be Maintained by Recipients) .

(b) This request will be made in writing to the recipient.

(c) The recipient must provide the requested information within 30 days of the date of the department's request.

(d) Failure to fully respond to this request will result in the termination of the agreement.

(e) Upon receipt of the requested information the department will evaluate for compliance with the agreement, rules and statutes.

(f) Upon determination that a recipient is not in compliance, the agreement will be terminated immediately and written notice mailed to the recipient.

§15.146.Ineligibility to Receive Personal Information.

(a) If a person or entity is determined by the department to have violated a clause or term of the agreement and the agreement has been terminated, that person or entity cannot enter into a subsequent agreement with the department to obtain driver record information.

(b) An entity is defined, for purposes of this section, as a partnership, corporation, business, professional association, joint stock company, nonprofit organization, and governmental entity. Should any one person or portion of the entity become ineligible to receive driver record information under Texas Transportation Code, §730.016 then the entity is also ineligible to receive this information

§15.147.Interactive Access for Driver History Information.

(a) In addition to the requirements listed in this subchapter, requestors receiving driver history information via the interactive system must provide the information required under §15.144 of this title (relating to Records to be Maintained by Recipients) in an electronic format.

(b) For release of information in this manner, a maximum number of daily transactions will be stipulated in the agreement. This maximum number will not be exceeded without prior approval from the department.

§15.148.Individual Requests for Driver Record Information.

(a) Individual requests for driver record information must be made on the department approved forms.

(b) The requestor must provide all required information and certify to the statutory requirements granting access.

(c) If it is determined by the department that the requestor has violated this certification, the requestor will be ineligible to receive driver record information.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 26, 2002.

TRD-200202565

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 424-2135


Chapter 16. COMMERCIAL DRIVERS LICENSE

Subchapter C. CHANGE OF LICENSE STATUS, RENEWALS, SURRENDER OF LICENSE, FEES

37 TAC §16.77

The Texas Department of Public Safety proposes an amendment to §16.77, concerning duplicate commercial driver license (CDL) transactions.

Amendment to the section adds new subsection (c) which states that all duplicate commercial driver transactions must be made in person by the license holder at a department driver license facility.

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

Mr. Haas also has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of enforcing the rule will be compliance with statute that CDL holders only have one CDL in their possession. There is no anticipated adverse economic effect on individuals, small businesses, or micro-businesses. The anticipated cost to individuals who are required to comply with the section as proposed will be the actual cost of the CDL license.

Comments on the proposal may be submitted to Frank Elder, Assistant Chief, Driver License Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas 78773-0380, (512) 424-2584.

The amendment is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work and Texas Transportation Code, §522.005.

Texas Government Code, §411.004(3) and Texas Transportation Code, §522.005 are affected by this proposal.

§16.77.Duplicates.

(a) - (b) (No change.)

(c) All duplicate CDL transactions must be made in person at a department driver license facility.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 26, 2002.

TRD-200202564

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 424-2135


Chapter 23. VEHICLE INSPECTION

Subchapter A. VEHICLE INSPECTION STATION LICENSING

The Texas Department of Public Safety (DPS) proposes the repeal of §23.16, concerning Persons with a Criminal Background, and amendments to §23.15, concerning Inspection Station and Certified Inspector Denial, Revocation, Suspensions, and Administrative Hearings. Section 23.15 provides the grounds for denial, revocation, and suspensions of certificate for inspection stations and vehicle inspectors, notification procedures, and rights to an administrative hearing on the department's action. Section 23.16 provides specific grounds for the denial, revocation, and suspension based on the applicant or certificate holder's conviction of a felony or Class A or B misdemeanor.

The purpose of the proposed amendment to §23.15 is to implement changes to Transportation Code, Chapter 548, §548.405 as amended by Texas House Bill 3071, Acts 2001, 77th Legislature, Regular Session, chapter 1169, §2. House Bill 3071 placed an affirmative burden of proof on applicants who apply for an inspection station certificate at the same location where an immediate family member has been suspended or revoked. House Bill 3071 expanded the applicability of §548.405 to include members, shareholders, directors and officers of partnerships, corporations and other business associations which apply for or hold a certificate as an inspection station. Finally, House Bill 3071 requires the department to develop a penalty schedule of suspensions and revocations for offenses committed in safety and safety/emissions inspection stations.

The proposed amendments to §23.15, expand the applicability of the section, provide definitions, include a penalty schedule based on violation categories, and further specify the types of violations in each category. The penalty schedule also includes criminal activity. Therefore, §23.16, which concerns specific grounds for the denial, revocation, and suspension based on the applicant or certificate holder's criminal background, is being repealed because, with the amendment of §23.15, it is obsolete.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the proposed amendment is in effect, there will be no significant fiscal implications for state or local government, or local economies.

Mr. Haas also has determined that for each year of the first five-year period the proposed amendment is in effect, the anticipated public benefit is more consumer protection because of the expanded application of the section. Owners and operators with a revoked or suspended certification can no longer regain certification using the identity of a business association entity. Additionally, the public can safely obtain the required annual inspection from individuals, which do not have a criminal history of violent and fraudulent behavior.

There will be no significant adverse fiscal implications to small or micro-businesses resulting from implementing the proposed amendment. The department currently requires a criminal background check on all applicants performed at no charge by the department. The penalty schedule does not affect inspection stations and vehicle inspectors that comply with department rules. The penalty schedule affects those inspection stations and vehicle inspectors who do violate the department rules, however, they will be assured of fair and equal treatment since all administrative actions will be in accordance with the proposed penalty schedule.

Comments may be submitted to E. Eugene Summerford, Legal Counsel, Vehicle Inspections and Emissions, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0543; or by fax at (512) 424-2774. All comments must be received by 5:00 p.m. on the 21st day after publication and should refer to "Proposed Rule 37 TAC §23.15" in the subject line or at the beginning of the text.

37 TAC §23.15

The amendment is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and the Transportation Code, Chapter 548, Subchapter A, §548.002, which authorizes the department to adopt rules to administer and enforce the compulsory inspection of vehicles, and Subchapter G, §548.405, which allows the department to deny, revoke or suspend the certificate of an inspection station and or inspector.

Texas Government Code, §411.004(3), and Transportation Code, §548.002 and §548.405 are affected by this proposal.

§23.15.Inspection Station and Certified Inspector Denial, Revocation, Suspensions, and Administrative Hearings.

(a) As provided in Transportation Code, Chapter 548, §548.405, the department may deny an application for a certificate, revoke or suspend the certificate of a person, inspection station, or inspector, place on probation, or reprimand a person who holds a certificate in accordance with this section. [ The department may deny an application for a license or revoke or suspend an outstanding certificate of any inspection station for the certificate or any person to inspect vehicles for any of the following reasons: ]

[(1) issuing a certificate without required adjustments, corrections, or repairs having been made when an inspection disclosed the necessity for those adjustments, corrections, or repairs;]

[(2) refusing to allow the owner of the vehicle to have required corrections or adjustments made by any qualified person he may choose;]

[(3) issuing an inspection certificate without having made an inspection of the vehicle;]

[(4) knowingly or willfully issuing an inspection certificate for a vehicle without the required items of inspection or with items which were not at the time of issuance in good condition and in conformity with the laws of this state, or in compliance with rules of the commission;]

[(5) charging more than the required inspection fee;]

[(6) issuing an inspection certificate without being certified to do so by the department;]

[(7) proof of unfitness of applicant or licensee under standards set out in Texas Transportation Code, Chapter 548, or in commission rules;]

[(8) material misrepresentation in any application or any other information filed under the Act or commission rules;]

[(9) willful failure to comply with the Act or any rule promulgated by the commission under the provisions of the Act;]

[(10) failure to maintain the qualifications for a license;]

[(11) any act or omission by the licensee, his agent, servant, employee, or person acting in a representative capacity for the licensee which act or omission would be cause to deny, revoke, or suspend a license to an individual licensee;]

[(12) fraudulently represent to an applicant that a mechanism or item of equipment required to be inspected must be repaired, adjusted, or replaced before the vehicle will pass inspection when that is not the case; or]

[(13) a conviction under the laws of this state, another state, or the United States of any crime which directly relates to the duties and responsibilities of a vehicle inspection station or inspector, as set out in §23.16 of this title (relating to Persons with a Criminal Background).]

(b) Applicability. This section applies to any entity capable of applying for or holding a certificate from the department to include:

(1) a natural person,

(2) a business association entitled to do business in the state, including but not limited to:

(A) a corporation,

(B) a partnership,

(C) a limited liability partnership, and

(D) a limited liability company,

(3) each member of a partnership or association issued a certificate under this title,

(4) each director or officer of a corporation issued a certificate under this title, and

(5) a shareholder that receives compensation, in the form of a salary, from the day-to-day operation of an inspection station by a corporation issued a certificate.

(c) Terms and/or Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Department of Public Safety (DPS), the terms used in this section have the meanings commonly ascribed to them in the fields of air pollution control and vehicle inspection. In addition to the terms that are defined by the TCAA, the following words and terms, when used in this section, shall have the following meanings.

(1) Suspension--means a temporary cessation of the authority associated with the certification of an inspection station or inspector.

(2) Revocation--means the withdrawal of the authority granted by the department to inspect vehicles under the certificate of an inspection station or inspector and the inability to re-apply for such a certificate for a period of at least three years.

(3) Lifetime Revocation--means the withdrawal of the authority granted by the department to inspect vehicles under the certificate of an inspection station or inspector and the inability to re-apply for such a certificate for the lifetime of the applicant.

(4) Warning--means a written reprimand based on a minor violation which if repeated will result in a more severe administrative sanction.

(d) Penalty Schedule. Pursuant to Transportation Code, Chapter 548, §548.405(h) - (i) the department will administer penalties by the category of the violation as follows:

Figure: 37 TAC §23.15(d)

(e) Violation categories are as follows:

(1) Category A.

(A) Issuing an inspection certificate without inspecting an item of inspection.

(B) Performing inspection in an unapproved inspection area.

(C) Failure to complete the reverse side of an inspection certificate.

(D) Failure to place an inspection certificate in the proper location.

(E) Issuing out of date inspection certificates.

(F) Refusing to inspect a vehicle without an objective justifiable cause, i.e. fuel leak, unsafe tires, etc.

(G) Failure to properly safeguard inspection certificates or department issued forms.

(H) Failure to properly maintain required records.

(I) Failure to keep an adequate supply of certificates.

(J) Failure to display the official department issued station sign.

(K) Failure to properly display the certificate of appointment, procedure chart, and other notices required by the department.

(L) Failure to keep department approved inspection area clean.

(2) Category B.

(A) Issuing inspection certificate without inspecting the vehicle.

(B) Improperly issuing inspection certificate to vehicle with more than one failing item of inspection.

(C) Requiring repair or adjustment not required by law, rule, or regulation.

(D) Refusing to allow owner to have repairs or adjustments made at location of owner's choice.

(E) Allowing uncertified person to conduct or participate in the inspection of a vehicle.

(F) Charging more than statutory fee.

(G) Requiring an additional fee or service charge in conjunction with the inspection.

(H) Inspector performing inspection while under the influence of alcohol or drugs.

(3) Category C.

(A) Issuing more than one inspection certificate without inspecting the vehicles.

(B) Multiple instances of issuing inspection certificates to vehicles with multiple defects.

(C) Emissions testing the exhaust or electronic connector of another (clean) vehicle fraudulently causing a vehicle to pass the emissions test (clean piping or clean scanning).

(D) Multiple emissions related violations on one vehicle or violations on more than one vehicle.

(E) Allowing a person whose certificate has been suspended or revoked to participate in a vehicle inspection or to participate in the operation of the inspection station where the current certificate holder was required to provide proof as prescribed in Transportation Code, Chapter 548, §548.405(e).

(F) Charging more than statutory fee in addition to not inspecting vehicle.

(G) Material misrepresentation in any application to the department or any other information filed pursuant to Transportation Code, Chapter 548, or department rules.

(4) Category D.

(A) Failure to possess a valid driver's license from state of residence.

(B) Failure to posses an operational item of inspection equipment required by the department.

(C) Failure to enter into and maintain a business arrangement with the Texas Information Management System contractor to obtain a telecommunications link to the Texas Information Management System Vehicle Identification Database (VID) for each vehicle exhaust gas analyzer, if in an affected county as defined §23.93(b)(1) of this title (relating to Vehicle Emissions Inspection Requirements).

(D) Conviction under the laws of this state, another state, or the United States of any crime as detailed in subsection (f) of this section.

(5) Category E.

(A) The following applies to inspection stations in which §23.93 of this title applies:

(i) Failure to perform applicable emission test as required.

(ii) Issuing an emissions inspection certificate without performing the emissions test on the vehicle as required.

(iii) Failure to perform the gas cap test or use of unauthorized bypass for gas cap test.

(iv) Issuing an emissions inspection certificate when the required emissions adjustments, corrections, or repairs have not been made after an inspection disclosed the necessity for such adjustments, corrections or repairs.

(v) Falsely representing to an owner or operator of a vehicle that an emission related component(s) must be repaired, adjusted, or replaced in order to pass emissions inspection.

(vi) Requiring emissions repair or adjustment not required by law, rule or regulation.

(vii) Tampering with the emissions system or an emission related component in order to cause vehicle to fail emissions test.

(viii) Refusing to allow owner to have emissions repairs or adjustments made at location of owner's choice.

(ix) Performing an emissions inspection outside the department approved inspection area.

(x) Allowing uncertified person to conduct an emission inspection.

(xi) Charging more than the authorized emissions inspection fee.

(B) The following applies to inspection stations in which §23.93 of this title is not applicable:

(i) Failure to perform the gas cap test.

(ii) Falsely representing to an owner or operator of a vehicle that emissions related component(s) must be repaired adjusted or replaced in order to pass inspection.

(iii) Requiring emissions repair or adjustment not required by law, rule or regulation.

(iv) Issuing a safety only inspection certificate to a vehicle required to undergo a safety and emissions inspection without requiring a signed and legible affidavit, approved by the department (VIE-12), from the owner or operator of the vehicle.

(f) The department has determined a certified inspection station and certified vehicle inspector is in a position of trust, performing a service to members of the public where the Transportation Code, Chapter 548, requires the public to report for vehicle inspection. Therefore, the department has determined the following crimes relate directly to the duties and responsibilities of a certified vehicle inspector and/or those for whom this section is applicable as detailed in subsection (b) of this section. Those crimes include:

(1) any felony or misdemeanor of which fraud is a factor,

(2) any criminal violation of statutes that protect consumers against unlawful business practices,

(3) murder,

(4) burglary,

(5) rape,

(6) child molestation,

(7) sexual assault,

(8) aggravated assault,

(9) any violent crime against a person involving knowledge or purpose,

(10) theft,

(11) possession of a controlled substance,

(12) conviction of driving while intoxicated, and

(13) conviction of an offense as detailed in Transportation Code, Chapter 548, §548.601 and §548.603.

(g) [ (b) ] When there is cause to deny an application for a certificate of any inspection station or the certificate of any person to inspect vehicles or revoke or suspend the outstanding certificate, the director shall, in less than 30 days before refusal, suspension, or revocation action is taken, notify the person in writing, in person, or by certified mail at the last address supplied to the department by the person, of the impending refusal, suspension, or revocation, the reasons for taking that action, and of his right to an administrative hearing for the purpose of determining whether or not the evidence is sufficient to warrant the refusal, suspension, or revocation action proposed to be taken by the director.

(h) [ (c) ] The director, without a hearing, may suspend or revoke or refuse to issue any certificate if, within 20 days after the personal notice of the notice is sent or notice has been deposited in the United States mail, the person has not made a written request to the director for this administrative hearing.

(i) [ (d) ] On receipt by the director of a written request of the person within the 20-day period, an opportunity for an administrative hearing shall be afforded as early as is practicable.

(j) [ (e) ] Said hearing shall be held in accordance with Texas Transportation Code, Chapter 548, and applicable rules of the department.

(k) [ (f) ] On the basis of the evidence submitted at the hearing, the director, acting for himself or upon the recommendation of his designee, may refuse the application or suspend or revoke the certificate.

(l) [ (g) ] Any person dissatisfied with the action of the director, may appeal the action of the director in accordance with Texas Transportation Code, Chapter 548.

(m) [ (h) ] The department will investigate all violations of Texas Transportation Code, Chapter 548, and all violations of rules and regulations promulgated under Texas Transportation Code, Chapter 548.

(n) [ (i) ] Vehicle inspection station or certified inspector may waive the right to an administrative hearing in writing by completing Form VI-63, voluntary waiver of administrative hearing.

(o) [ (j) ] The procedure of the administrative hearing shall be covered by the general rules of practice and procedure of the Texas Department of Public Safety, Chapter 29 of this title (relating to Practice and Procedure), except where other provisions are provided herein.

(p) Administration of the Penalty Schedule under §23.13(d) of this title (relating to Reissue of Inspection Station Certificate of Appointment after Suspension) does not preclude informal disposition of contested cases pursuant to Government Code, Chapter 2001, §2001.056.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 26, 2002.

TRD-200202566

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 424-2135


37 TAC §23.16

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Public Safety or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and the Transportation Code, Chapter 548, Subchapter A, §548.002, which authorizes the department to adopt rules to administer and enforce the compulsory inspection of vehicles, and Subchapter G, §548.405, which allows the department to deny, revoke or suspend the certificate of an inspection station and or inspector.

Texas Government Code, §411.004(3), and Transportation Code, §548.002 and §548.405 are affected by this proposed repeal action.

§23.16.Persons with a Criminal Background.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 26, 2002.

TRD-200202567

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 424-2135


Subchapter G. VEHICLE EMISSIONS INSPECTION AND MAINTENANCE PROGRAM

37 TAC §23.97

The Texas Department of Public Safety (DPS) proposes new §23.97, concerning the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP). The section requires Recognized Emissions Repair Facilities of Texas and Recognized Emissions Repair Technicians of Texas authorized under §23.93 of this title (relating to Vehicle Emissions Inspection Requirements) to comply with LIRAP rules adopted by the Texas Natural Resource Conservation Commission (TNRCC). This section incorporates the TNRCC LIRAP rules by reference.

To advance the objectives of the state's vehicle emissions inspection and maintenance (I/M) program, the Texas Legislature provided financial assistance to low-income individuals needing repairs, retrofits, or retirement for vehicles failing the emissions inspection. Texas House Bill 2134, Acts 2001, 77th Legislature, Regular Session, chapter 1075, §1, requires the TNRCC and the Public Safety Commission, by joint rule, to establish and authorize the commissioner's court of a participating county to implement a low income vehicle repair assistance, retrofit, and accelerated vehicle retirement program.

Pursuant to House Bill 2134, TNRCC adopted 30 TAC §§114.7, 114.60, 114.62, 114.64, 114.66, 114.68, 114.70, and 114.72 (relating to Low Income Vehicle Repair Assistance, Retrofit, And Accelerated Vehicle Retirement Program) on March 27, 2002 (Rule Log Number 2001-035a-114-AI), and published in the April 12, 2002, issue of the Texas Register (27 TexReg 3204). The adopted rules are only applicable to counties having a vehicle emissions inspection and maintenance (I/M) program and electing to implement LIRAP provisions.

The department collects designated emissions testing related fees determined by TNRCC and deposits them into a special account with the Comptroller of Public Accounts. Under LIRAP, a participating county contracts with TNRCC to obtain these funds to provide monetary or other compensatory assistance to low income vehicle owners whose vehicles fail the emissions inspection. This assistance is for emissions related repairs to bring the vehicle into compliance, or if repair is not economically feasible, then assistance to provide for a nonpolluting replacement vehicle. To receive assistance under this program, the department's participating recognized emissions repair facilities must perform the repairs.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the proposed new section is in effect, there are no significant fiscal implications to the department to implement provisions in this rulemaking. There are no significant fiscal implications to other units of state government to implement the provisions of these rules.

There will be significant fiscal implications to participating counties that voluntarily choose to implement LIRAP because these counties will be able to receive funds through grant contracts from TNRCC. There should be no fiscal implications to counties that are not eligible, or which do not choose to participate in this program.

Mr. Haas has determined that for each year of the first five-year period the section is in effect, the anticipated public benefit resulting from adoption of the section will be monetary incentives for low income vehicle owners to repair or replace polluting vehicles, resulting in decreased emissions in affected counties.

There will be some adverse fiscal implications to small or micro-businesses resulting from implementing the proposed new section. The department does not anticipate these implications to be significant. The fees collected on emissions inspections of model year 1996 and newer vehicles constitutes the LIRAP funding source ($6.00 per vehicle). While small and micro-businesses owning these vehicles may contribute to the fund, LIRAP is not available to these businesses. LIRAP does not apply to fleet vehicles, commercial vehicles, classic motor vehicles, exhibition vehicles, and vehicles not regularly used for transportation during the normal course of daily activities. Businesses within the affected counties would not be eligible to apply for repair or replacement assistance for company vehicles that have failed a vehicle emissions inspection. LIRAP assistance is only available to individual vehicle owners.

However, there will be positive fiscal implications to small or micro-businesses as well. Individual vehicle owners applying for assistance must have their vehicles repaired at department recognized emissions repair facilities, some of which will be small or micro-businesses. In addition, some small or micro- businesses will participate as licensed auto dismantling or other vehicle retirement operators in the retirement of vehicles.

Comments may be submitted to E. Eugene Summerford, Legal Counsel, Vehicle Inspections and Emissions, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0543; or by fax at (512) 424-2774. All comments must be received by 5:00 p.m. on the 21st day after publication and should refer to "Proposed Rule 37 TAC §23.97" in the subject line or at the beginning of the text.

The new section is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and the Health and Safety Code, Title 5, Chapter 382, §382.209(a), which requires the Texas Natural Resource Conservation Commission and the Public Safety Commission, by joint rule, to implement a low-income vehicle repair assistance, retrofit, and accelerated retirement program.

Texas Government Code, §411.004(3), Heath and Safety Code, §382.209(a), and Transportation Code, §548.301 are affected by this proposed new action.

§23.97.Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program.

(a) The Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) as specified in 30 TAC §§114.7, 114.60, 114.62, 114.64, 114.66, 114.68, 114.70, and 114.72 (relating to Low Income Vehicle Repair Assistance, Retrofit, And Accelerated Vehicle Retirement Program), as most recently amended, are adopted by reference.

(b) Recognized Emissions Repair Facilities of Texas and Recognized Emissions Repair Technicians of Texas authorized under§23.93 of this title (relating to Vehicle Emissions Inspection Requirements) participating in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program shall comply with the rules adopted in subsection (a) of this section.

(c) Any failure to comply with these rules and/or any department rule may result in the department's withdrawal of its recognition of the recognized emissions repair facility and/or the recognized emissions repair technician.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 26, 2002.

TRD-200202568

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 424-2135