[ ~~(2)~~ Type B household goods carriers shall comply with the applicable requirements of Transportation Code, Chapter 601. If a Type B household goods carrier maintains an automobile liability insurance policy to comply with Transportation Code, Chapter 601, the policy must be an enforceable commercial or business automobile liability insurance policy. ]

(b) Cargo insurance.

(1) Household [ ~~Type A household goods carriers. A Type A household~~ ] goods carriers [ ~~carrier~~ ] shall file and maintain with the department proof of financial responsibility.

(A) The minimum limits of financial responsibility for a household goods carrier for hire is $5,000 for loss or damage to a single shipper's cargo carried on any one motor vehicle.

(B) The minimum limits of financial responsibility for a household goods carrier for hire is $10,000 for aggregate loss or damage to multiple shipper cargo carried on any one motor vehicle. In cases in which multiple shippers sustain damage and the aggregate amount of cargo damage is greater than the cargo insurance in force, the insurance company shall prorate the benefits among the shippers in relationship to the damage incurred by each shipper.

~~[(2) Type B household goods carriers. A Type B household goods carrier shall file and maintain with the department proof of financial responsibility.]~~

~~[(A) The minimum level of financial responsibility for loss or damage to total cargo carried on any one motor vehicle is a $5,000.]~~

[(B) The minimum level of financial responsibility for aggregate loss or damage to multiple shipper cargo carried on any one motor vehicle is $5,000. In cases in which multiple shippers sustain damage and the aggregate amount of cargo damage is greater than the cargo insurance in force, the insurance company shall prorate the benefits among the shippers in relationship to the damage incurred by each shipper.]

(2) [ ~~(3)~~ ] Tow truck company performing nonconsent tows. A tow truck company that performs nonconsent tows shall file and maintain with the department proof of financial responsibility for on-hook cargo. The minimum level of financial responsibility for each registered vehicle performing nonconsent tows will be in the amount of at least $50,000.

(1) If a motor carrier is required to register under this subchapter, if its primary business is transportation for compensation or hire[ ~~, and if it operates~~ ] between two or more municipalities [ ~~incorporated cities, towns, or villages~~ ], the carrier shall provide workers’ compensation for all its employees or accidental insurance coverage in the amounts prescribed in paragraph (2) of this subsection. [ ~~This subsection does not apply to Type B household goods carriers.~~ ]

(2) Accidental insurance coverage required by paragraph (1) of this subsection shall be at least in the following amounts:

(A) $300,000 for medical expenses and coverage for at least 104 weeks;

(B) $100,000 for accidental death and dismemberment, including 70% of employee’s pre-injury income for not less than 104 weeks when compensating for loss of income; and

(d) Qualification of motor carrier as self-insured.

(1) General qualifications. A motor carrier may meet the insurance requirements of subsections (a) and (b) of this section by filing an application, in a form prescribed by the department, to qualify as a self-insured. The application must include a true and accurate statement of the motor carrier’s financial condition and other evidence that establishes its ability to satisfy obligations for bodily injury and property damage liability without affecting the stability or permanency of its business. The department may accept United States Department of Transportation evidence of the motor carrier’s qualifications as a self-insured.

(2) Adopted final orders. The department adopts all final orders of the Railroad Commission of Texas to the extent that they concern self-insurance and were in effect on August 31, 1995. Those final orders are continued in effect until changed by order of the department.

(3) Applicant guidelines. In addition to filing an application as prescribed by the department, an applicant for self-insured status must submit materials that will allow the department to determine the following information.

(A) Applicant’s net worth. An applicant’s net worth must be adequate in relation to the size of its operations and the extent of its request for self-insurance authority. The applicant must demonstrate that it can and will maintain an adequate net worth.

(B) Self-insurance program. An applicant must demonstrate that it has established and will maintain a sound insurance program that will protect the public against all claims involving motor vehicles to the same extent as the minimum security limits applicable under this section. In determining whether an applicant is maintaining a sound insurance program, the department will consider:

(i) reserves;

(ii) sinking funds;

(iii) third-party financial guarantees;

(iv) parent company or affiliate sureties;

(v) excess insurance coverage; and

(vi) other appropriate aspects of the applicant’s program.

(C) Safety program. An applicant must submit evidence of substantial compliance with the Federal Motor Carrier Safety Regulations as adopted by the Texas Department of Public Safety and with Transportation Code, Chapter 644.

(4) Other securities or agreements. The department may accept an application for approval of a security or agreement if satisfied that the security or agreement offered will adequately protect the public.

(5) Periodic reports. An applicant shall file annual statements, semi-annual and quarterly reports, and any other reports required by the department reflecting the applicant’s financial condition and the status of its self-insurance program while the motor carrier is self-insured.

(6) Duration of self-insured status. The department may approve an applicant as a self-insured for any specific time or for an indefinite time.

(7) Revocation of self-insured status. On receiving evidence that a self-insured motor carrier’s financial condition has changed, that its safety program or record is inadequate, or that it is otherwise not in compliance with this subchapter, the department may at any time require the self-insured to provide additional information. On 10 days notice from the department, the self-insured shall appear and demonstrate that it continues to have adequate financial resources to pay all claims involving motor vehicles for bodily injury and property damage liability. The self-insured shall also demonstrate that it remains in compliance with the requirements of this section and of any active self-insurance orders issued or adopted by the department. If an applicant fails to comply with this paragraph, its self-insured status may be revoked.

(8) Appeal. An applicant may appeal a denial or revocation of self-insurance status by filing a petition for an administrative hearing in accordance with §§1.21 et seq. of this title (relating to Procedures in Contested Cases).

(e) Filing proof of insurance with the department.

(1) Forms.

(A) A motor carrier must [ ~~, other than a Type B household goods carrier, shall file and~~ ] maintain proof of automobile liability insurance for all vehicles required to be registered under this subchapter at all times. This proof shall be filed on a form acceptable to the director.

(B) A household goods carrier shall file and maintain proof of cargo insurance for its cargo at all times. This proof shall be on a form acceptable to the director.

(C) A tow truck company that performs nonconsent tows shall file and maintain with the department proof of on-hook cargo insurance for all nonconsent tows. This proof shall be on a form acceptable to the director.

(2) Filing proof of insurance and financial responsibility. A motor carrier’s insurance or surety company, bank, or other financial institution shall file and maintain proof of insurance or financial responsibility on a form acceptable to the director:

(A) at the time of the original application for motor carrier certificate of registration;

(B) on or before the cancellation date of the insurance coverage as described in subsection (f) of this section;

(D) when the motor carrier asks to retain the certificate number of a revoked certificate of registration;

(E) when the motor carrier changes its name under §18.13(f)(2) of this subchapter;

(F) when the motor carrier, under subsection (a) of this section, changes the classification of the cargo being transported; and

(G) when replacing another active insurance filing.

(3) Filing fee. Each certificate of insurance or proof of financial responsibility filed with the department for the coverage required under this section shall be accompanied by a nonrefundable filing fee of $100. This fee applies both when the carrier submits an original application and when the carrier submits a supplemental application when retaining a revoked certificate of registration number.

(4) Acceptable filings. [ ~~Other bonds, policies or certificates.~~ ] The department will not accept an [ ~~a surety bond,~~ ] insurance policy[ , ] or certificate of insurance unless it is issued by an insurance [ ~~or surety~~ ] company licensed and authorized to do business in the State of Texas. It must be in a form prescribed or approved by the DOI and signed or countersigned by an authorized agent of the insurance [ ~~or surety~~ ] company. The department will accept a certificate of insurance issued by a surplus lines insurer that meets the requirements of Insurance Code, Article 1.14-2, and rules adopted by the DOI under that article.

~~[(5) Letters of credit as proof of financial responsibility for Type B household goods carriers.]~~

[(A) The department will accept an irrevocable letter of credit if it is issued by a bank or financial institution whose deposits are guaranteed by the Federal Deposit Insurance Corporation. A letter of credit filed by a carrier must be signed or countersigned by an officer of the bank or financial institution and must comply with the following provisions at a minimum.]

[(i) The beneficiaries of the letter of credit must be designated clearly as cargo loss or damage claimants of the carrier. No other parties may have rights of recovery against the letter of credit. Payments under the letter of credit must be made directly to the cargo loss or damage claimant. A qualified beneficiary must establish and perfect its claims by having agreed with the motor carrier in writing on a specific amount to be paid in final settlement of the claim or by having obtained a final judgment rendered by a court of competent jurisdiction establishing the motor carrier’s liability and the amount of that liability.]

[(ii) The letter of credit may not be revoked until after settlement of all claims arising during the time the carrier had authority from the department to use the letter of credit to satisfy cargo insurance requirements of this section. Claims must be filed with the household goods carrier within 90 days after delivery of the property or, in case of failure to make delivery, within 90 days after reasonable time for delivery has elapsed. A lawsuit must be instituted within two years and one day from the day when written notice is given by the household goods carrier to the claimant that part or all of the claim has been disallowed. When a claim is not filed or a suit is not instituted as specified in this clause, a household goods carrier shall not be held liable.]

~~[(iii) The letter of credit must state that the bank or financial institution will notify the department of cancellation of or any change in the letter of credit.]~~

[(B) The carrier shall provide the department with copies of an amendment or successor letter of credit no later than 30 days before the amendment or successor letter goes into effect. Any change in the terms of the letter of credit must be given prior approval by the department. Draw downs may be made only to satisfy claims for cargo loss or damage, and any draw down from the letter of credit must be reported immediately to the department if it is not replenished within seven days.]

[(C) The department retains the authority to terminate the letter of credit filing at any time if it appears to the department that the carrier’s letter of credit fails to provide satisfactory protection for shippers or if the carrier fails to timely file any of the information required by the department.]

[(D) On receiving evidence that the letter of credit is no longer adequately funded, that the financial condition of a carrier with a letter of credit filing has changed, or that the carrier is otherwise not in compliance with this subchapter, the department may at any time require the carrier to provide additional information. On 10 days notice from the department, the carrier shall appear and demonstrate that it continues to have adequate letter of credit funding to pay all claims involving cargo loss or damage liability and that it remains in compliance with the requirements of this section. The department may revoke the letter of credit filing if a carrier fails to demonstrate adequate letter of credit funding to pay all claims involving cargo loss or damage or fails to comply with any requirement of this section.]

[(E) A carrier may appeal a denial or revocation of a letter of credit filing by filing a petition for an administrative hearing in accordance with §§1.21 et seq. of this title (relating to Procedures in Contested Cases).]

(f) Cancellation of insurance coverage. Except when replaced by another acceptable form of insurance coverage or proof of financial responsibility approved by the department, no insurance coverage[ ~~, surety bond, or letter of credit~~ ] shall be canceled or withdrawn until 30 days after notice has been given to the department by the insurance [ ~~or surety~~ ] company [ ~~or by the bank or financial institution~~ ] in a form approved by the department. Nonetheless, proof of insurance coverage for a seven day or 90 day certificate of registration may be canceled by the insurance company without 30 days notice if the certificate of registration is expired, suspended, or revoked, and the insurance company provides a cancellation date on the proof of insurance coverage. The department will revoke a certificate of registration under §18.72 of this chapter for failure to maintain proof of current insurance.

(g) Replacement insurance filing. The department will consider a new insurance filing as the current record of financial responsibility required by this section if:

(1) the new insurance filing is received by the department; and

(2) a cancellation notice has not been received for previous insurance filings.

(h) Insolvency of insurance carrier. If the insurer [ ~~or surety~~ ] of a motor carrier becomes insolvent or becomes involved in a receivership or other insolvency proceeding, the motor carrier must file [ ~~may apply for approval of a surety bond, insurance policy, or letter of credit issued by another surety, insurer, bank, or other financial institution by filing~~ ] an affidavit with the department. The affidavit must be executed by an owner, partner, or officer of the motor carrier and show that:

(1) no accidents have occurred and no claims have arisen during the insolvency of the insurance carrier[ ~~, surety, bank, or other financial institution~~ ]; or

(2) all claims have been satisfied.

(i) Notifications. The department shall notify the Texas Department of Public Safety and other law enforcement agencies of each motor carrier whose certificate of registration has been revoked for failing to maintain liability insurance coverage.

§18.17.Single State Registration System.

(a) Applicability. The State of Texas, through the department, participates in the single state registration system established by §4005 of Title IV of the Intermodal Surface Transportation Efficiency Act of 1991, 49 USC §14504, and Transportation Code, Chapter 645. A for-hire interstate carrier that is not registered under the single state registration system and is exempt from economic regulation by the Federal Motor Carrier Safety Administration under the Interstate Commerce Act shall register pursuant to Transportation Code, Chapter 643, and §18.13 of this subchapter.

(1) An interstate carrier must file with the department an application to register for all states of travel as required by 49 USC §14504 before beginning operations in Texas if the carrier has its principal place of business:

(A) in Texas; or

(B) outside a participating state and selects Texas as its registration state under 49 CFR §367.3.

(2) An interstate carrier that is authorized by the Federal Motor Carrier Safety Administration to transport passengers or property and that must register in a state other than Texas must fully comply with 49 USC §14504 before operating in Texas.

(3) If an applicant’s principal place of business is located outside a participating state, the applicant shall apply for registration in the state in which the applicant will operate the largest number of motor vehicles during the next registration year. The applicant may choose a registration state from participating states in which it will operate an equal number of vehicles if it will not operate a larger number in any other participating state.

(b) Initial application for single state registration. An application for single state registration must be made with the department’s Motor Carrier Division on a form approved by the director. All information provided to the department must agree with information in the most recent Federal Motor Carrier Safety Administration certificate or permit issued to the applicant.

(1) Additional materials. An application must contain the following [ ~~be accompanied by~~ ]:

(A) information concerning all vehicles, whether owned or leased, that the applicant or registrant operates under Federal Motor Carrier Safety Administration (FMCSA) authority; [ ~~a copy of the applicant’s full interstate authority, unless the department waives this requirement as described in paragraph (3) of this subsection;~~ ]

(B) a statement whether the applicant will be transporting hazardous commodities in interstate or foreign commerce; and [ ~~a copy of Federal Motor Carrier Safety Administration form BOC-3, prescribed by 49 CFR, Part 366;~~ ]

(C) applicable fees payable under subsection (i) of this section. [ information on a form prescribed by the director of the Motor Carrier Division concerning all vehicles, whether owned or leased, that the applicant or registrant operates under Federal Motor Carrier Safety Administration authority; ]

~~[(D) a statement whether the applicant will be transporting hazardous commodities in interstate or foreign commerce;]~~

~~[(E) applicable fees payable under subsection (i) of this section; and]~~

~~[(F) proof of insurance showing the applicant’s business address as specified in subsection (j) of this section.]~~

(2) Requirements regarding principal place of business. An interstate carrier’s principal place of business for registration is the business address the interstate carrier indicated on the order issued by the Federal Motor Carrier Safety Administration or the business address reported by the registrant to the Federal Motor Carrier Safety Administration as a change of address.

[ ~~(A)~~ ] The registrant must provide a physical address and may not provide only a post office box. The registrant may provide a second address, including a post office box, for use solely as a mailing address. An applicant domiciled in a rural area that does not have a street address may submit a rural route with a box number.

~~[(B) An applicant may change its registration state under subsection (e)(3) of this section.]~~

[(3) Waiver of filing complete Federal Motor Carrier Safety Administration authority. If the Federal Motor Carrier Safety Administration authority is longer than 20 pages, the department will waive the filing of the complete authority. In that case the applicant must:]

~~[(A) provide the department a copy of the portion of the Federal Motor Carrier Safety Administration order that includes the service date and order section; and ]~~

~~[(B) file a prepared synopsis of the Federal Motor Carrier Safety Administration authority.]~~

(3) [ ~~(4)~~ ] Documents improperly filed. If an applicant files or causes to be filed any document that contains any misrepresentation, misstatement, or omission of required information or that does not include the payment of fees, the document will be deemed incomplete and will not be processed by the department until all items have been corrected.

(c) Registration issuance. The department will mail a registration receipt to an applicant that meets the requirements of this section and whose registration is approved. The registration receipt qualifies the registrant to operate under its Federal Motor Carrier Safety Administration certificate or permit in all jurisdictions indicated.

(d) Registration receipts. A registration receipt becomes effective on the date specified on the receipt and expires on the 31st day of December of the registration year for which it was issued. A registrant must retain its original registration receipt at its principal place of business for three years.

(1) Copies. A copy of the registration receipt, to be provided by the registrant, shall be carried in each motor vehicle for which the registrant has paid the applicable fees. On demand, the driver of a motor vehicle shall present a copy of a registration receipt for inspection by any department certified inspector in accordance with §18.31 of this chapter or any other authorized government personnel for inspection.

(2) Alterations of registration receipts. The department may revoke the registration of an interstate carrier that alters its registration receipt. Any law enforcement officer is authorized to confiscate the altered copy on sight. The confiscated registration receipt shall be returned to the department after any court action is completed by the state in which it was confiscated.

(3) Transfer of registration receipts between vehicles. A registration receipt may be transferred from a vehicle taken out of service to the registrant’s replacement vehicle.

(4) Lost or stolen registration receipts. If the registrant fails to receive a receipt mailed by the department or if a registration receipt is otherwise lost, stolen, or destroyed, a registrant may request a replacement registration receipt, which will be provided without charge.

(e) Amendments and corrections after original registration.

(1) Any time a registrant is issued new FMCSA operating authority, order, or re-entitlement or if any amendments or revisions are made by the FMCSA to the registrant’s authority and operations, the registrant must contact the department to request a new registration receipt. [ Federal Motor Carrier Safety Administration amendments and revisions. A registrant shall file a supplemental application with the department if the registrant is issued new Federal Motor Carrier Safety Administration operating authority, order, or re-entitlement or if any amendments or revisions are made by the Federal Motor Carrier Safety Administration to the registrant’s authority and operations. A copy of those documents shall be provided to the department as soon as they are issued. ]

(2) Change of registrant name. If a registrant changes its name and a re-entitlement is issued by the FMCSA, the registrant must contact the department to request a new registration receipt. [ If the registrant changes its name other than by transferring ownership, the registrant shall submit a request for a name change on a form prescribed by the director. The registrant shall submit to the department a copy of the re-entitlement issued by the Federal Motor Carrier Safety Administration. A registrant shall also furnish proof of insurance in the new name. ]

(3) Change of registration state. A registrant's registration state may be changed only if the registrant changes its principal place of business or if its existing registration state ceases to participate in the single state registration system.

(A) If the registrant changes its principal place of business to a non-participating state, it shall retain the current registration state designation for registration purposes and file notice of a business address change in the form of a copy of a letter from the interstate carrier to the Federal Motor Carrier Safety Administration and shall also submit a new proof of insurance filing in its registration state.

(B) If a registrant changes its principal place of business to another participating state, the registrant shall:

(i) notify its current registration state and the new registration state within 30 days after making its selection;

(ii) notify its insurer immediately; and

(iii) file in the new registration state all the documents required of a new registrant.

(C) If a registrant changes its principal place of business during a registration period and that change affects its reciprocity status, the registrant will not be given a credit or refund for fees paid for that registration period. The current registration state will use the new principal place of business when determining fees for additional states of travel or equipment.

(4) Transfer of ownership. When Federal Motor Carrier Safety Administration authority is transferred to a new owner, the current registrant shall notify the department in writing to cancel its registration, and the new owner shall register with the department in accordance with this section.

(5) Other conditions requiring supplemental application. A supplemental application shall be filed if there is:

(A) an addition of equipment; or

(B) an addition of states of travel . [ ~~; or~~ ]

[ ~~(C)~~ ~~a change of designated process agent for any state.~~ ]

(6) Additional vehicles. A registrant may not operate more vehicles in any participating state than the number for which fees have been paid.

(7) Failure to update process agent. If a registrant fails to file [ ~~a supplemental application reflecting~~ ] a change in its process agent with the FMCSA , the department may suspend its registration under §18.72 of this chapter.

(f) Correction of application form. To correct an application form, an interstate carrier may notify the department in writing or correct the application returned by the department.

(g) Cancellation of registration. At the written request of a registrant, the department will cancel the interstate carrier’s registration.

(h) Expiration and renewal of registration.

(1) Expiration. Registrations issued under this section are valid for the period beginning January 1 and ending December 31 or for any portion of that period. If registration is for a fraction of a year, the registration fee will not be pro-rated.

(2) Renewal. To renew an interstate carrier’s registration, a registrant must follow the procedure outlined in subsection (b) of this section before December 1st of the existing registration period. The department will mail or send electronically a renewal notice to each registrant between August 1 and November 30 of the existing registration period. Failure to receive the notice does not relieve the registrant of the responsibility to renew.

[ ~~(A)~~ ~~To renew its registration, a registrant need not refile a full copy of its Federal Motor Carrier Safety Administration authority.~~ ]

[ ~~(B)~~ An applicant must attach to its renewal application copies of additional authority grants, re-entitlements, transfer orders, or grants of self-insurance issued by the Federal Motor Carrier Safety Administration to the extent that those documents have not been previously filed with the department. ]

[ ~~(3)~~ ~~Renewal fee. All renewal applications shall be accompanied by the appropriate fees as specified in department Form RS-2.~~ ]

(i) Payment of Fees.

(1) Fees must be paid as specified in §18.15 of this subchapter.

(2) If an applicant has evidence that any fees collected or charged on or before November 15, 1991, were different from the fees specified in the department’s Form RS-1A, the applicant shall submit the evidence to the department with the application. After considering the submission, the department will notify the applicant or registrant if the proper fee has not been paid. Each participating state, in computing the appropriate portion of the revenue due the department for its registrants, may use the department’s Form RS-2 to determine the registrant’s per-vehicle fee.

(j) Insurance requirements. The applicant must ensure that proof of insurance is filed with the FMCSA [ ~~department~~ ]. Proof of insurance must be in accordance with the levels and forms specified by 49 CFR, Part 387, Subpart C. [ In all applications, the interstate carrier shall indicate whether proof of insurance will be filed or has been filed with the department and whether the interstate carrier’s public liability protection remains effective. ] A copy of the applicant's public liability policy with the endorsements attached shall be maintained at the interstate carrier’s principal place of business.

(1) Registrant name. Proof of insurance shall be filed in the full and correct name of the person to whom the certificate or permit is issued. The registrant’s full name must include, all owner names and any fictitious name or d/b/a. The name and business address on the proof of insurance must be identical to the name and business address contained in its application and in its most recent Federal Motor Carrier Safety Administration order.

(2) Form of proof. Proof of insurance shall be filed as specified by 49 CFR, Part 387, Subpart C. A "certificate of insurance" issued by an insurance agent will not be accepted as proof of insurance.

(3) Self insurers. If an applicant has been approved for self-insurance by the Federal Motor Carrier Safety Administration, the applicant must indicate the status of such self-insurance on the application form. The applicant must also file with the department a copy of the Federal Motor Carrier Safety Administration order approving a public liability self-insurance or other public liability security or agreement under the provisions of 49 CFR, Part 387, Subpart C. The registrant shall immediately notify the department if the self-insurance plan is suspended, revoked, or modified by a Federal Motor Carrier Safety Administration order. Failure to comply may result in the suspension of the registration.

(4) Changes in status. A registrant shall immediately notify the department of all changes in the status of the registrant’s public liability protection.

(5) Incorrect or falsified proof of insurance. If an insurance company notifies the department that information relating to a registrant’s proof of insurance is incorrect or has been falsified, the department may verify the insurance information of the insured.

(A) If the department finds that incorrect or falsified filings have been made, the department will notify the registrant immediately and request new proof of insurance.

(B) If new and valid proof of insurance is not received, the department may initiate a proceeding for suspension or revocation of a registration, assessment of an administrative penalty, or both.

(6) Cancellation of insurance. On receiving notice of cancellation of a registrant’s proof of insurance, the department will notify the registrant in writing that its registration to operate in all states of travel is suspended on the effective date of the cancellation of the insurance as specified in 49 CFR §387.317. [ The effective date of the cancellation notice for proof of insurance will be computed as 30 days from the date notice is received by the department. An insurer may not terminate coverage until at least 30 days after the department has received notice of the cancellation. ]

(A) If insurance lapses because a proof of insurance has not been filed with the correct name and business address, the interstate carrier’s registration will be suspended until proper proof of insurance is filed with the department.

(B) When sufficient proof of insurance or other proof of compliance is filed and in effect after a suspension of the registration, the department will immediately reinstate the interstate carrier’s registration and notify the registrant that its registration is restored.

[ ~~(k)~~ ~~Electronic filings. The department may elect to receive or verify electronic filings of proof of insurance.~~ ]

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 November 18, 2005.

TRD-200505335

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 1, 2006

For further information, please call: (512) 463-8630

43 TAC §18.18

(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 Transportation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

STATUTORY AUTHORITY

The repeal is proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §643.003, which allows the department to adopt rules to administer Chapter 643 regarding motor carrier registration; and Occupations Code, §2303.051, which provides the commission with the authority to establish rules regarding vehicle storage facilities.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapter 643, and Occupations Code, Chapter 2303

§18.18.Temporary Registration of International Motor Carriers.

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 November 18, 2005.

TRD-200505336

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 1, 2006

For further information, please call: (512) 463-8630

Subchapter C. RECORDS AND INSPECTIONS

43 TAC §18.32

STATUTORY AUTHORITY

CROSS REFERENCE TO STATUTE

Transportation Code, Chapter 643, and Occupations Code, Chapter 2303

§18.32.Motor Carrier Records.

(a) General records to be maintained. Every motor carrier shall prepare and maintain at its principal place of business in Texas:

(1) operational logs, insurance certificates, and documents to verify the carrier’s operations;

(2) complete and accurate records of services performed;

(3) all certificate of title documents, weight tickets, permits for oversize or overweight vehicles and loads, dispatch records, tow tickets, or any other document that would verify the operations of the vehicle to determine the actual weight, insurance coverage, size, and/or capacity of the vehicle;

(4) documents supporting fee payments and the original registration receipts issued by the department for an interstate carrier registered under §18.17 of this chapter (relating to Single State Registration System), for a period of at least three years; and

(5) the original certificate of registration and registration listing, if applicable.

(b) Additional records for household goods carriers. In order to verify compliance with Subchapters B and E of this chapter, every household goods carrier shall retain complete and accurate records maintained in accordance with reasonable accounting procedures of all services performed in intrastate commerce. Household goods carriers shall retain all of the following information and documents:

(1) moving services contracts, such as, bills of lading or receipts;

(2) proposals for moving services;

(3) inventories, if applicable;

(4) freight bills;

(5) time cards, trip sheets, or driver’s logs;

(6) claim records;

(7) ledgers and journals;

(8) canceled checks;

(9) bank statements and deposit slips;

(10) invoices, vouchers or statements supporting disbursements; and

(11) dispatch records.

(1) Every [ ~~every~~ ] motor carrier shall maintain a copy of its current registration listing in the cab of each registered vehicle at all times. A motor carrier shall make available to a certified inspector or any law enforcement officer a copy of the current registration listing upon request.

[ ~~(1)~~ A Type B household goods carrier shall maintain a copy of its certificate of registration in either the cab of each power unit or each trailer operated on its behalf at all times. A Type B household goods carrier shall make available and accessible to a certified inspector or any law enforcement officer a copy of the current certificate of registration.]

(2) A registered motor carrier is not required to carry proof of registration in a vehicle leased from a leasing business that is registered under §18.19 of this chapter (relating to Short-term Lease and Substitute Vehicles), when leased as a temporary replacement due to maintenance, repair, or other unavailability of the originally leased vehicle. A copy of the lease agreement, or the lease for the originally leased vehicle, in the case of a substitute vehicle, must be carried in the cab of the vehicle.

(d) Location of files. Except as provided in paragraphs (1) and (2) of this subsection, every motor carrier shall maintain at a principal office in Texas all records and information required by the department.

(1) Texas firms. If a motor carrier wishes to maintain records at a location other than its principal office in Texas, the motor carrier shall make a written request to the manager. A motor carrier may not begin maintaining records at an alternate location until the request is approved by the manager.

(2) Out-of-state firms. A motor carrier whose principal business address is located outside the state of Texas shall maintain records required under this section at its principal office in Texas. Alternatively, a motor carrier may maintain such records at an out-of-state facility if the carrier reimburses the department for necessary travel expenses and per diem for any inspections or investigations conducted in accordance with §18.31 of this subchapter.

(3) A motor carrier that performs nonconsent tows shall maintain a current towing fee schedule, as prescribed in Subchapter H of this chapter (relating to Nonconsent Towing Fees Schedule), at all vehicle storage facilities where vehicles are delivered.

(e) Preservation and destruction of records. All books and records generated by a motor carrier, except driver’s time cards and logs, must be maintained for not less than two years at the motor carrier’s principal business address. A motor carrier must maintain driver’s time cards and logs for not less than six months at the carrier’s principal business address.

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 November 18, 2005.

TRD-200505337

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 1, 2006

For further information, please call: (512) 463-8630

Subchapter E. CONSUMER PROTECTION

43 TAC §§18.51, 18.58, 18.63 - 18.65

STATUTORY AUTHORITY

CROSS REFERENCE TO STATUTE

Transportation Code, Chapter 643, and Occupations Code, Chapter 2303

§18.51.Household Goods Agents.

(a) Appointment of household goods agent. A household goods carrier may appoint a household goods agent to represent the household goods carrier’s business interests in Texas.

(b) Liability. A household goods carrier is responsible for the acts, delinquencies, omissions, and conduct of each of its household goods agents while acting on behalf of the household goods carrier.

(c) Agent filing. A household goods carrier shall file with the department, on a form approved by the director, a current, accurate list of its household goods agents and their addresses.

(1) A household goods carrier using alternative vehicle registration under §18.13(e) of this title (relating to Application for Motor Carrier Registration) shall notify the department 30 days prior to the creation or termination of an agency agreement.

(2) A household goods carrier not using the alternative vehicle registration shall notify the department on or before January 1, April 1, July 1, and October 1, of each year of the creation or termination of an agency agreement.

(d) Use of household goods carrier’s name. When representing a household goods carrier, the agent:

(1) shall operate under the name of the represented household goods carrier, as shown on the certificate of registration issued by the department;

(2) shall use only the moving services contract of the represented household goods carrier; and

(3) may include its name, as listed on the household goods carrier’s agent filing, on the carrier’s advertisements.

(e) Availability of tariff records. A [ ~~Type A~~ ] household goods carrier shall require each of its household goods agents to keep copies of the applicable tariff in the household goods agent’s office and open to public inspection.

(f) Shipping records maintained. A household goods agent shall keep a record of every shipment that it sells or handles for at least two years after the date of shipment.

(g) Agency agreements. An agreement between a household goods carrier and its household goods agent shall be in writing and signed by the household goods carrier and the household goods agent, and copies of any agreement must be kept in the files of the household goods carrier for a period of not less than two years following the date of termination of each agreement.

§18.58.Moving Services Contract - Options for Carrier Limitation of Liability.

(a) General.

(1) Household goods shipments transported between points in Texas shall be subject to all terms and conditions of the moving services contract, as set forth in §18.57 of this title (relating to Moving Services Contract), except in cases where such terms and conditions are in conflict with the laws of the State of Texas.

(2) If a household goods carrier chooses to use additional limitations of liability on a shipment, the limitations shall be either of the options specified in subsections (b) or (c) of this section. A household goods carrier may not alter or expand on the limitation to its liability or the exact wording set out in subsections (b) or (c) of this section. The option selected by the household goods carrier shall be included with and is part of the moving services contract.

(b) Option 1. If this option is chosen, the following language must be used verbatim.

(1) Section 1 - General Provisions.

(A) For the purposes of this subsection, the following terms will mean:

(i) Household goods carrier - the motor carrier/mover contracted to transport a shipment of household goods.

(ii) Shipper - the owner of the household goods shipment or his representative.

(B) Changes to the moving service contract are not valid unless agreed to in writing by the household goods carrier and the shipper.

(C) Household goods carriers will transport shipments with reasonable dispatch. Reasonable dispatch requires the transportation of a shipment within the agreed period of time shown on the moving services contract, except when circumstances beyond the carrier’s control, force majeure, prevent or delay transportation.

(D) Moving services contracts must comply with all other applicable laws of the State of Texas.

(2) Section 2 - Cargo Liability Provisions.

(A) The household goods carrier is liable for any loss or damage to the shipment, except as listed in subparagraphs (B) and (C) of this paragraph.

(B) The household goods carrier is not responsible for loss, damage, or delay due to acts of God, acts of civil authorities, defects in the shipment, a riot, a strike, or an act or default of the shipper.

(C) The household goods carrier is not liable for loss or damage caused by dangerous or explosive goods unless the shipper notifies the carrier, in writing, of the nature of the goods and the carrier agrees, in writing, to the transportation of these goods.

(3) Section 3 - Claims Provisions.

(A) A written claim must be filed by the shipper within 90 days of delivery of the shipment to the final destination. In case of failure to make delivery, then a written claim must be filed by the shipper within 90 days after a reasonable time for delivery has elapsed.

(B) A household goods carrier is not liable for any claim that is not filed within 90 days of the delivery of the shipment to the final destination. A household goods carrier is not liable for any claim that is not filed within 90 days after a reasonable time for delivery has elapsed for shipments that were not delivered.

(4) Section 4 - Payment Provisions. The shipper must pay the freight charges upon delivery unless the shipper and household goods carrier agree otherwise.

(5) Section 5 - Provisions for Shipments Not Delivered.

(A) A household goods carrier may place a shipment of household goods into storage if the shipper is not available for delivery of the goods as scheduled.

(B) The cost of such storage is the responsibility of the shipper of the household goods.

(D) A household goods carrier must issue written notice of the storage of the household goods to the shipper at each address shown on the moving services contract within three days of placing the goods in storage.

(E) If the shipper refuses to accept or does not claim the household goods within 15 days of the written notice of storage, the household goods carrier may begin the process of selling the goods at public sale, as prescribed in Transportation Code, Chapter 6.

(F) A household goods carrier must give written notice of the public sale to the shipper at each address shown on the moving services contract.

(G) The moving services contract does not prohibit the sale of the goods under any other lawful manner if the method set out in the contract cannot be reasonably accomplished.

(1) Section 1 of contract terms and conditions.

(A) The household goods carrier or party in possession of any of the property herein described shall be liable at common law for any loss thereof or damage thereto, except as hereinafter provided.

(2) Section 2 of contract terms and conditions.

(A) A household goods carrier is not bound to transport property by any particular scheduled vehicle or in time for any particular market other than with reasonable dispatch. A household goods carrier shall have the right, in case of physical necessity, to forward the property by any household goods carrier or route between the point of shipment and the point of destination. In all cases not prohibited by law, where a lower value than actual value has been represented in writing by the shipper or has been agreed upon in writing as the released value of the property as determined by the classification or tariffs upon which the rate is based, such lower value plus freight charges, if paid, shall be the maximum amount recovered, whether or not such loss or damage occurs from negligence.

(B) As a condition precedent to recovery, a claim must be filed in writing with the receiving or delivering household goods carrier, or the household goods carrier issuing the bill of lading or receipt, or the household goods carrier on whose line the loss, damage, injury, or delay occurred, or the household goods carrier in possession of the property when the loss, damage, injury, or delay occurred, within 90 days after delivery of the property or, in case of failure to make delivery, then within 90 days after a reasonable time for delivery has elapsed; and suits shall be instituted against any household goods carrier only within two years and one day from the day when notice in writing is given by the household goods carrier to the claimant that the household goods carrier has disallowed the claim or any of its part or parts specified in the notice. Where a claim is not filed or a suit is not instituted in accordance with the foregoing provisions, a household goods carrier hereunder shall not be held liable, and the claim will not be paid.

(C) Any household goods carrier or party liable on account of loss of or damage to any of the property shall have the full benefit of any insurance that may have been effected, upon, or on account of, said property, so far as this shall not avoid the policies or contracts of insurance; provided, that the household goods carrier reimburses the claimant for the premium paid.

(3) Section 3 of contract terms and conditions. Except where such service is required as the result of household goods carrier’s negligence, all property shall be subject to necessary cooperage and baling at the owner’s cost.

(4) Section 4 of contract terms and conditions.

(A) Property not removed by the party entitled to receive it within the free time (if any) allowed by tariff lawfully on file (such free time to be computed as therein provided), after notice of the arrival of the property at destination has been duly sent or given, and after tender of the property for delivery at destination has been made, or property not received, at time tender of delivery of the property to the party entitled to receive it has been made, may be kept in vehicle, warehouse, or place of business of the household goods carrier, subject to the tariff charge for storage and to household goods carrier’s responsibility as warehouseman, only, or at the option of the household goods carrier, may be removed to and stored in a public or licensed warehouse at the point of delivery or other available point, or if no such warehouse is available at point of delivery or at other available storage facility, at the cost of the owner and there held without liability on the part of the household goods carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage. In the event consignee cannot be found at address given for delivery, notice of the placing of such goods in warehouse shall be mailed to the address given for delivery and mailed to any other address given on the bill of lading or receipt for notification, showing the warehouse in which the property has been placed.

(B) If nonperishable property which has been transported to destination hereunder is refused by consignee or the party entitled to receive it upon tender of delivery, or said consignee or party entitled to receive it fails to receive or claim it within 15 days after notice of arrival shall have been duly sent or given, the household goods carrier may sell the same at public auction to the highest bidder, at such place as may be designated by the household goods carrier; provided, that the household goods carrier shall have first mailed, sent, or given to the consignor notice that the property has been refused or remains unclaimed, as the case may be, and that it will be subject to sale under the terms of the bill of lading or receipt if disposition be not arranged for, and shall have published notice containing a description of the property, the name of the party to whom consigned, or, if shipped order notify, the name of party to be notified, and the time and place of sale, once a week for two successive weeks, in a newspaper of general circulation at the place of sale or nearest place where such newspaper is published. Thirty days must elapse after notice that the property was refused or remains unclaimed was mailed, sent, or given before notice of sale may be published.

(C) If perishable property which has been transported is refused by the consignee or party entitled to receive it, or the consignee or party entitled to receive it shall fail to receive it promptly, the household goods carrier may, in its discretion, to prevent deterioration or further deteriorations, sell the same to the best advantage at private or public sale; provided, that if time serves for notification to the consignor or owner of the refusal of the property or the failure to receive it and request for disposition of the property, notification shall be given, in such manner as the exercise of due diligence requires before the property is sold.

(D) If the procedure provided for in this section is not possible, it is agreed that nothing contained in the section shall be construed to abridge the right of the household goods carrier at its option to sell the property under such circumstances and in such manner as may be authorized by law.

(E) The proceeds of the sale shall be applied by the household goods carrier to the payment of freight, demurrage, storage, and any other lawful charges and the expense of notice, advertisement, sale, and other necessary expense and of caring for and maintaining the property, if proper care requires special expense. If there is a balance it shall be paid to the owner of the property.

(F) If the household goods carrier is directed by the consignor or its agent to load property from (or render any services at) a place or places at which the consignor or its agent is not present, the property shall be at the risk of the owner before loading.

(G) If the household goods carrier is directed by the consignee or its agent to unload or deliver property (or render any services) at the place or places at which the consignee or its agent is not present, the property shall be at the risk of the owner after unloading or delivery.

(5) Section 5 of contract terms and conditions. A household goods carrier shall not carry or be liable in any way for documents, specie, or for articles of extraordinary value not specifically rated in the published classification or tariffs unless a special agreement to do so and a stipulated value of the articles are endorsed.

(6) Section 6 of contract terms and conditions. Every party, whether the principal or local agent, shipping explosives or dangerous goods, without previous full written disclosure to the household goods carrier of their nature, shall be liable for and indemnify the household goods carrier against all loss or damage caused by the goods, and the goods may be warehoused at the owner’s risk and expense or destroyed without compensation.

(7) Section 7 of contract terms and conditions.

(A) The owner or consignee shall pay the freight and all other lawful charges accruing on said property; but, except in those instances where it may lawfully be authorized to do so, no household goods carrier shall deliver or relinquish possession at destination of the property covered by this bill of lading or receipt until all rates and charges have been paid. The consignor shall be liable for the freight and all other lawful charges, except that if the consignor stipulates, by signature, in the space provided for that purpose on the face of this bill of lading or receipt that the household goods carrier shall not make delivery without requiring payment of the charges and the household goods carrier, contrary to such stipulation shall make delivery without requiring such payment, the consignor (except as hereinafter provided) shall not be liable for the charges. Where the household goods carrier has been instructed by the shipper or consignor to deliver the property to a consignee other than the shipper or consignor, the consignee shall not be legally liable for transportation charges in respect of the transportation of the property (beyond those billed against him at the time of delivery for which he is otherwise liable) which may be found to be due after the property has been delivered to him, if the consignee is an agent only and has no beneficial title in said property, and prior to delivery of said property has notified the delivering household goods carrier in writing of the fact of such agency and absence of beneficial title, and, in the case of a shipment reconsigned or diverted to a point other than that specified in the original bill of lading or receipt, has also notified the delivering household goods carrier in writing of the name and address of the beneficial owner of said property; and, in such cases the shipper or consignor, or, in the case of a shipment so reconsigned or diverted, the beneficial owner shall be liable for such additional charges.

(B) If the consignee has given to the household goods carrier erroneous information as to whom the beneficial owner is, such consignee shall be liable for the additional charges. Nothing herein shall limit the right of the household goods carrier to require at time of shipment the payment or guarantee of the charges. If upon inspection it is ascertained that the articles shipped are not those described in this bill of lading or receipt, the freight charges must be paid on the articles actually shipped.

(8) Section 8 of contract terms and conditions. If this bill of lading or receipt is issued on the order of the shipper or his agent, in exchange or in substitution for another bill of lading or receipt, the shipper’s signature to the prior bill of lading or receipt as to the statement of value or otherwise, or election of common law or bill of lading or receipt, in or in connection with such prior bill of lading or receipt, shall be considered a part of this bill of lading or receipt as fully as if the same were written or made in or in connection with this bill of lading or receipt.

(9) Section 9 of contract terms and conditions. Any alteration, addition, or erasure in this bill of lading or receipt which shall be made without the special notation herein of the agent of the household goods carrier issuing this bill of lading or receipt, shall be without effect, and this bill of lading or receipt shall be enforceable according to its original tenor.

§18.63.Annual Report.

(a) Submission date. On or before the 15th day of May of each year, every household goods carrier shall file a copy of its annual operating report (on a form approved by the director) with the department. [ ~~Type B household goods carriers shall file their first annual operating report on or before May 15, 1999 and then every subsequent year on or before May 15th.~~ ]

(b) Contents. Annual reports shall include, at a minimum, the following information on intrastate household goods shipments:

(1) the total number of shipments;

(2) the total number of claims that resulted in mediations coordinated by the department; and

(3) the total number of claims resolved after a lawsuit was filed.

§18.64.Rates.

[ ~~(a)~~ ~~Applicability. This section applies only to Type A household goods carriers.~~ ]

(a) [ ~~(b)~~ ] Ratemaking. A household goods carrier and/or its household goods agent shall set maximum rates and charges for services in its applicable tariff. The household goods carrier and/or its household goods agent shall disclose the maximum rates and charges to prospective shippers before transporting a shipment between two incorporated cities.

(b) [ ~~(c)~~ ] Prohibited charges and allowances. A household goods carrier and/or its household goods agent shall not charge more than the maximum charges published in its tariff on file with the department for services associated with transportation between two incorporated cities.

(1) Eligibility. In accordance with Transportation Code, §643.154, a household goods carrier and/or its household goods agent may enter into collective ratemaking agreements between one or more other household goods carriers or household goods agents concerning the establishment and filing of maximum rates and charges, classifications, rules, or procedures.

(2) Designation of collective ratemaking associations. An approved association may be designated by a member household goods carrier as its collective ratemaking association for the purpose of filing a tariff containing maximum rates and charges required by §18.65 of this title (relating to Tariff Registration).

(3) Submission. In accordance with Transportation Code, §643.154, a collective ratemaking agreement shall be filed with the department for approval. The agreement shall include the following information:

(A) full and correct name, business address (street and number, city, state and zip code), and phone number of the association;

(B) whether the association is a corporation or partnership; and

(i) if a corporation, the government, state, or territory under the laws of which the applicant was organized and received its present charter; and

(ii) if an association or a partnership, the names of the officers or partners and date of formation;

(C) full and correct name and business address (city and state) of each household goods carrier on whose behalf the agreement is filed and whether it is an association, a corporation, an individual, or a partnership;

(D) the name, title, and mailing address of counsel, officer, or other person to whom correspondence in regard to the agreement should be addressed; and

(E) a copy of the constitution, bylaws, or other documents or writings, specifying the organization’s powers, duties, and procedures.

(4) Signature. The collective ratemaking agreement shall be signed by all parties subject to the agreement or the association’s executive officer.

(5) Incomplete agreement. If the department receives an agreement which does not comply with this subsection, the department will send a letter to the individual submitting the agreement. The letter shall identify the information that is missing and advise the association that the agreement will not be processed until the information is received.

(6) Approval. In accordance with Transportation Code, §643.154, the director or designee will approve a collective ratemaking agreement if the agreement provides that:

(A) all meetings are open to the public; and

(B) notice of meetings shall be sent to shippers who are multiple users of household good carriers.

(7) Noncompliance.

(A) If the director or designee determines that an agreement does not comply with paragraph (6) of this subsection, the department will notify the association representative by certified mail of:

(i) the specific reason that an agreement is not being approved; and

(ii) the hearing date.

(B) If the association representative resubmits an acceptable agreement which meets the requirements of paragraph (6) of this subsection within 10 business days prior to the hearing date, the hearing will be canceled and the agreement will be approved. The State Office of Administrative Hearings (SOAH) shall conduct the hearing in accordance with 43 TAC §1.21 et seq. of this title (relating to Contested Case Procedure).

(C) If the hearing is held, the presiding officer shall explain the reason(s) that the agreement was rejected. The association representative will be allowed to respond to the objections and present evidence or exhibits which relate to his or her response. The hearing examiner, based on the evidence provided, will make a recommendation to the commission whether the agreement should be approved or resubmitted. The association representative shall be advised of the examiner’s recommendation. The final order will be submitted to the commission for approval.

(8) New parties to an agreement. An updated agreement shall be filed with the department as new parties are added.

(9) Amendments to approved agreements. Amendments to approved agreements (other than as to new parties) may become effective only after approval of the department.

§18.65.Tariff Registration.

~~[ ~~(a)~~ Applicability. This section only applies to Type A household goods carriers.]~~

(a) [ ~~(b)~~ ] Submission. In accordance with Transportation Code, §643.153, a household goods carrier and/or its household goods agent shall file a tariff with the department. The tariff shall establish maximum rates and charges for transportation services when a highway between two or more municipalities [ ~~incorporated cities, towns or villages~~ ] is traversed. A household goods carrier who is not a member of an approved association under §18.64 of this title (relating to Rates) shall file a tariff individually. In lieu of filing individually, a household goods carrier or its household goods agent, that is a member of an approved association in accordance with §18.64 of this title (relating to Rates), may designate a collective association as its ratemaking association. The association may file a tariff, as required by this subsection, for member carriers.

(1) Contents. The tariff:

(A) shall set out all rates, charges, rules, regulations, or other provisions, in clear and concise terms, used to determine total transportation charges;

(B) may provide for the offering, selling, or procuring of insurance as provided in §18.54 of this title (relating to Selling Insurance to Shippers);

(C) may provide for the base transportation charge to include assumption by the household goods carrier for the full value of the shipment in the event a policy or other appropriate evidence of the insurance purchased by the shipper from the household goods carrier is not issued to the shipper at the time of purchase;

(D) shall describe the procedure for determining charges that are below the maximum rate for each service performed; and

(E) shall reference a specific mileage guide or source, if information on rates and charges based on mileage is included in the tariff (The referenced mileage guide shall be filed with the department as an addendum to the tariff. If the household goods carrier utilizes a computer database as a mileage guide, the household goods carrier shall allow department personnel free access to the system when conducting an inquiry regarding a specific movement performed by the household goods carrier).

(2) Interstate tariff. In accordance with Transportation Code, §643.153, a household goods carrier may satisfy the requirements of this subsection by filing a copy of its tariff governing interstate household goods transportation services.

(3) Transmittal letter. A transmittal letter shall accompany a tariff being filed. The transmittal letter shall provide:

(A) the name of the household goods carrier;

(B) the Texas mailing address and street address of the household goods carrier’s principal office;

(D) the name and title of the household goods carrier’s representative authorizing the tariff filing; and

(E) whether the tariff is being filed on behalf of a member carrier.

(4) Format. Tariffs shall be filed:

(A) on 8 1/2" x 11" paper;

(B) with a cover sheet showing:

(i) the name of the issuing household goods carrier or collective ratemaking association;

(ii) the Texas mailing and street address;

(iii) the issuance date of the tariff;

(iv) the effective date of the tariff; and

(v) the tariff number; and

(i) general rules;

(ii) accessorial services; and

(iii) rates.

(5) Item numbers. Individual items shall be titled and designated by item number.

(6) Amendments. Any amendment to a tariff shall be filed with the department not less than 10 days prior to the effective date of the amendment. The household goods carrier or collective ratemaking association filing on behalf of its member may either file an amended tariff in total or an amendment referencing the specific sections and items which are being amended. The amendment format shall be the same as required by paragraph (4) of this subsection. A transmittal letter providing the same information as required by paragraph (3) of this subsection shall accompany the amendment filing.

(7) Rejection. The department will reject a tariff or amendment filing if it is determined the tariff:

(A) fails to meet the requirements of this section; or

(B) fails to fully disclose, in clear and concise terms, all rates, charges, and rules.

(8) Electronic filings. A household goods carrier may file an electronic copy of its tariff provided that the document is consistent with the provision of this subsection and is formatted in Microsoft Word or other format approved by the director.

(b) [ ~~(c)~~ ] Operations. The department will accept a tariff which is in substantial compliance with this section if the tariff was submitted prior to November 1, 1995.

(c) [ ~~(d)~~ ] Access. In accordance with Transportation Code, §643.153, tariffs filed in accordance with this section will be made available for public inspection at the Motor Carrier Division, 4203 Bull Creek Road, Building 22, Austin, Texas, 78731, and by calling 1-800-299-1700.

(d) [ ~~(e)~~ ] Conflicts. All provisions of household goods carriers’ tariffs are superseded to the extent they may conflict with the provisions of this chapter.

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 November 18, 2005.

TRD-200505338

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 1, 2006

For further information, please call: (512) 463-8630

Subchapter G. VEHICLE STORAGE FACILITIES

43 TAC §§18.82, 18.87 - 18.93, 18.96

STATUTORY AUTHORITY

CROSS REFERENCE TO STATUTE

Transportation Code, Chapter 643, and Occupations Code, Chapter 2303

§18.82.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--The Vehicle Storage Facility Act, Occupations Code, Chapter 2303, concerning vehicle storage facilities.

(2) Abandoned nuisance vehicle--A motor vehicle that is at least 10 years old and is of a condition only to be demolished, wrecked, or dismantled.

(3) Affidavit of Right of Possession and Control--A form prescribed by the department and provided by the licensee for use by an individual certifying right of possession if the licensee is unable to verify the individual’s status as an immediate family member.

(4) Day--Twenty-four continuous hours.

(5) Fence--An enclosure of wood, chain link, iron, concrete, or masonry, placed around an area used to store vehicles and designed to prevent intrusion and escape.

(6) Immediate family--An individual’s parents, spouse, children, brothers, and sisters if they reside in and are supported by the same household.

(7) Impoundment--The following actions when performed on a stored vehicle:

(A) using materials such as plastic or canvas tarpaulins to ensure the preservation of a stored vehicle if doors, windows, convertible tops, hatchbacks, sun roofs, trunks, or hoods are broken or inoperative;

(B) conducting a written inventory of any unsecured personal property contained in a stored vehicle;

(C) removing and storing all unsecured personal property that is contained in a stored vehicle and for which safekeeping is necessary; and

(D) obtaining motor vehicle registration information for a specific vehicle directly or indirectly from the department’s Vehicle Titles and Registration Division.

(8) Main entrance--The initial point from the public road onto the private property leading to the vehicle storage facility at which a consumer or service recipient enters a vehicle storage facility.

(9) Person--An individual, corporation, organization, business trust, estate, trust, partnership, association, or other legal entity.

(10) Principal--An individual who:

(A) holds, whether personally, as a beneficiary of a trust, or by other constructive means:

(i) 10% of a corporation’s outstanding stock; or

(ii) an ownership interest in a business that is equivalent to a fair market value of more than $25,000;

(B) has the controlling interest in a business;

(C) has a participating interest of more than 10% in the profits, proceeds, or capital gains of a business, regardless of whether the interest is direct or indirect, whether it is held through share, stock, or any other manner, or whether it includes voting rights;

(D) holds a position as a member of the board of directors or other governing body of a business; or

(E) holds a position as an elected officer of a business.

(11) Registered owner--Each person in whose name a vehicle is titled under Transportation Code, Chapter 501, or in whose name a vehicle is registered under Transportation Code, Chapter 502.

(12) Vehicle--A motor vehicle subject to registration under Transportation Code, Title 7, Subtitle A, or any other device designed to be self-propelled or transported on a public highway.

(13) Vehicle owner--A person:

(A) in whose name a vehicle is registered under the Certificate of Title Act, Transportation Code, Chapter 501;

(B) in whose name a vehicle is registered under Transportation Code, Chapter 502, or a member of that person’s immediate family;

(D) who is an unrecorded lienholder with a right to possession; or

(E) who is a lienholder that holds an affidavit of repossession and has the right to repossess a vehicle.

(14) Vehicle storage facility (VSF)--A garage, parking lot, or other facility owned or operated by a person other than a governmental entity for storing or parking 10 or more vehicles per year.

(15) Vehicle transfer--Any movement of a vehicle out of a VSF, prior to its release as prescribed in §18.92(a) of this chapter (relating to Technical Requirements).

§18.87.Notifications Regarding Towed Vehicles.

(a) Applicability. If a vehicle is removed by the vehicle owner within 24 hours after the operator receives the vehicle, notification as described in subsections (b) - (d) of this section does not apply.

(b) Notification to owners of registered vehicles. Registered owners of towed vehicles shall be notified in the following manner.

(1) Vehicles registered in Texas. After accepting for storage a vehicle registered in Texas, the VSF shall notify the vehicle’s current registered owner and all recorded lienholders by certified, electronic certified, or registered mail within five days, but in no event sooner than within 24 hours of receipt of the vehicle.

(2) Vehicles not registered in [ ~~outside of~~ ] Texas. After accepting for storage a vehicle not registered in [ ~~outside of~~ ] Texas, the VSF shall notify the vehicle’s current registered owner and all recorded lienholders within 14 days, but in no event sooner than within 24 hours of receipt of the vehicle, by:

(A) certified, electronic certified mail, or registered mail; or

(B) notice by publication in a newspaper of general circulation in the county in which the vehicle is stored if:

(i) the vehicle is registered in another state;

(ii) the operator of the storage facility submits a written request that is correctly addressed, with sufficient postage, and is sent by certified mail, or electronic certified mail, return receipt requested, to the governmental entity with which the vehicle is registered requesting information relating to the identity of the last known registered owner and any lienholder of record;

(iii) the identity of the last known registered owner cannot be determined;

(iv) the registration does not contain an address for the last known registered owner; [ ~~and~~ ]

(v) the operator of the storage facility cannot reasonably determine the identity and address of each lienholder ; or, [ . ]

(vi) the vehicle does not display a license plate or a vehicle inspection certificate indicating the state of registration and the identity and address of the registered owner and lienholder cannot be reasonably determined by the operator of the storage facility.

(3) It is a defense to an action initiated by the department for violation of this section that the facility has attempted unsuccessfully and in writing to obtain information from the governmental entity with which the vehicle is registered.

(c) Date of notification. Notification will be considered to have occurred when the United States Postal Service places its postmark on the written notice or on the date of newspaper publication of the notice.

(d) Form of notifications. All mailed notifications must be correctly addressed and mailed with sufficient postage. Notices published in a newspaper may contain information for more than one vehicle.

(1) All mailed notifications shall state:

(A) the full licensed name of the VSF where the motor vehicle is located, its street address and telephone number, and the hours the vehicle can be released to the vehicle owner;

(B) the daily storage rate, the type and amount of all other charges assessed, and the statement, "Total storage charges cannot be computed until vehicle is claimed. The storage charge will accrue daily until vehicle is released";

(C) the date the vehicle will be transferred from the VSF and the address to which the vehicle will be transferred if the operator will be transferring a vehicle to a second lot because the vehicle has not been claimed within a certain time;

(D) the date the vehicle was accepted for storage and from where, when, and by whom the vehicle was towed;

(E) the VSF number preceded by the words "Texas Department of Transportation Vehicle Storage Facility License Number" or "TxDOT VSF Lic. No.";

(F) a notice of the towed vehicle owner’s right under Transportation Code, Chapter 685, to challenge the legality of the tow involved; and

(G) the name, mailing address, and toll-free telephone number of the Motor Carrier Division for purposes of directing questions or complaints.

(2) All published notifications shall state:

(A) the full name, street address, telephone number, and vehicle storage facility license number of the vehicle storage facility;

(B) a description of the vehicle; and

(e) Nonconsent towed vehicle towed from private property. A VSF accepting a nonconsent towed vehicle towed from private property must report that tow to the local law enforcement agency for the area from which the vehicle was towed. This report must be made within two hours of receiving the vehicle. It must include the vehicle’s license plate number and issuing state, vehicle identification number, and location from which it was towed. Facility records shall indicate specifically to whom the stated information was reported and in what manner, as well as the time and date of the report.

§18.88.Documentation and Records.

(a) Retention of written documentation. Vehicle storage facility licensees must maintain written documentation regarding their operations for a period of two years from the date such operations occurred. Written documentation shall be in the form of:

(1) motor vehicle registration checks;

(2) notification letters;

(3) certified return receipts;

(4) tow tickets or wrecker slips (if applicable);

(5) bills for service;

(6) auction receipts;

(7) inventory (if applicable);

(8) certificates of authority to demolish; and

(9) any authorized document used to release a vehicle (title, affidavit of right of possession and control, court order, etc.).

(b) Combination documents. Provided that the document contains the minimum information described in subsection (c) of this section, a licensee may consolidate the information required into a single document in order to meet record retention requirements of subsection (a) of this section. Combination documents may consist of:

(1) bills for service;

(2) inventory records;

(3) tow tickets; or

(4) wrecker slips (if applicable).

(c) Minimum information. Each licensee shall keep written records on each vehicle kept or stored at the vehicle storage facility. These records shall contain:

(1) the year, make, model, color, correct license plate number, state issuing the license, and correct vehicle identification number of the vehicle;

(2) the date, time and location from which the vehicle was towed, and name of person who authorized the tow;

(3) the name of the tow truck driver, the name of the company that towed the vehicle, and the license plate numbers of plates issued to the tow truck under Transportation Code, §502.180, and §504.508[ ~~, and former §502.281~~ ];

(4) the date the vehicle was released, the name of the individual to whom the vehicle was released, and the type of identification (Texas drivers license or other state or federally issued photo identification) and identification number provided by the individual to whom the vehicle was released;

(5) the date of any vehicle transfer, and the address of the location to which it was transferred along with the name of the towing company and tow truck driver who made the transfer;

(6) a copy of any certificate of title issued after the vehicle came into the possession of the vehicle storage facility, any certificate of authority to demolish, any police auction sales receipt, or any transfer document issued by the State of Texas for the vehicle if vehicle ownership has been transferred due to any action of the vehicle storage facility or if the vehicle has been disposed of or demolished; and

(7) all amounts received at the time the vehicle was released, including the specific nature of each charge.

(d) Nonconsent tow tickets and wrecker slips. The VSF shall ensure that nonconsent tow tickets and wrecker slips (if applicable) contain the registered name of the tow truck company and the certificate of registration number on file with the department.

(e) Availability of documentation. All required documentation shall be made available by the licensee, the licensee’s agent, or the licensee’s employee for inspection and copying upon request by department personnel, or a certified law enforcement officer within the officer’s jurisdiction, during the same hours the vehicle storage facility must ensure that vehicles are available for release to the vehicle owner.

(f) Care and custody of records. Required records shall be kept under the care and custody of the licensee for at least two years from the date the vehicle was received.

§18.89.Notice of Complaint Procedure.

Each vehicle storage facility shall notify consumers and service recipients of the name, mailing address, and telephone number of the department for purposes of directing complaints regarding vehicle storage to the department. The licensee may use a legible sticker or rubber stamp to convey the required information. The notice [ ~~notification~~ ] shall be included on:

(1) a sign prominently displayed to the public at the place of payment, with letters at least one inch in height, and a contrasting background; and

(2) the front page of any bill for service.

§18.90.Rights of Owner or Authorized Representative.

(a) A vehicle storage facility must allow a person claiming to be the owner of a vehicle stored or parked at the facility to have access to the vehicle’s glove compartment, console, or other interior storage area if documents necessary to establish the person’s identity or ownership of the vehicle are located in the glove compartment, console, or other interior storage area.

(b) When a person demonstrates ownership or right to possession of a motor vehicle stored at a VSF, the person and his/her authorized representative shall:

(1) be entitled to inspect a copy of the tow ticket or wrecker slip, as described in §18.88 of this subchapter, for the motor vehicle and shall not be required to pay any fees or charges before doing so (placing the ticket or slip behind a glass enclosure for the person to inspect satisfies this requirement);

(2) be given access to, and be allowed to remove, any personal belongings in the vehicle, unless otherwise indicated by a certified law enforcement officer (the VSF must require a receipt from the person to whom the personal belongings are released for any such property removed from the stored vehicle by the vehicle owner or authorized representative); and

(3) have access, during normal business hours, to the vehicle for the purposes of insurance and/or repair estimates.

(4) have access to the nonconsent towing fees schedule, as prescribed in §18.103 of this chapter (relating to Required Posting at Vehicle Storage Facility (VSF)), for the specific motor carrier involved in the transportation of the vehicle to the vehicle storage facility.

§18.91.Facility Requirements.

(a) Enclosure and security of stored vehicles.

(1) Fencing. If not enclosed by a five foot high fence on or before September 1, 1985, all vehicle storage facilities shall be completely enclosed by a fence at least six feet high with a gate which is locked at all times when the licensee or an agent or employee is not at the storage lot. No two vehicle storage facilities may operate within the same fenced area.

(2) Security of vehicles.

(A) No vehicle may be stored or kept at any licensed vehicle storage facility unless it is kept inside the fenced or enclosed area at all times. For purposes of this subsection, the term "enclosed" shall mean inside a building.

(B) A vehicle accepted for storage in a vehicle storage facility must be secured to prevent theft of the vehicle or its contents, including but not limited to locking doors, closing windows and hatchbacks, and raising or covering convertible tops.

(b) Surface. All vehicle storage facilities shall have an all-weather surface such as concrete, asphalt, black-top, stone, macadam, limestone, iron ore, gravel, shell, or caliche, that enables the safe and effective movement of stored vehicles upon all portions of the lot, both under their own power and under tow, at all times, regardless of prevailing weather conditions. The surface shall also be free of overgrown vegetation.

(c) Illumination. All vehicle storage facilities shall maintain illumination levels adequate for nighttime release of vehicles. The term "adequate" shall mean sufficient to allow inspection of a vehicle for damage at the time of release. At a minimum, there must be one lighting fixture containing at least a 250 watt element for each 1/4 acre of storage area.

(d) Signs.

(1) Facility information. All vehicle storage facilities shall have a clearly visible and readable sign at its main entrance. Such sign shall have letters at least 2 inches in height, with contrasting background, shall be visible at 10 feet, and shall contain the following information:

(A) the registered name of the storage lot, as it appears on the vehicle storage facility license;

(B) street address;

(D) the facility’s hours, within one hour of which vehicles will be released to vehicle owners; and

(E) the storage lot’s state license number preceded by the phrase "VSF License Number."

(2) Per diem charges. All vehicle storage facilities shall have a sign setting out the per diem charge for storage and all other fees which may be charged by the storage lot, including notification and impoundment fees. The sign shall include all forms of payments the VSF shall accept for any charge associated with delivery or storage of a vehicle. This sign shall be located so it is clearly visible to a vehicle owner at the place of payment and [ ~~prior to paying the fees,~~ ] shall have letters at least 1 inch in height[ , ] with a contrasting background.

(3) Nonconsent towing fees schedule. All vehicle storage facilities shall conspicuously place a sign, at the place of payment, that states in 1-inch letters that "Applicable schedules of nonconsent towing fees will be provided for viewing upon request by persons claiming vehicles." The nonconsent towing fees provided for viewing must match the nonconsent towing fees schedule on file with the department, as provided in Subchapter H of this chapter (relating to Nonconsent Towing Fees Schedule).

(4) Instruments accepted for release of vehicle. All vehicle storage facilities shall have a sign describing the instruments which may be presented by the vehicle owner or his/her authorized representative to obtain possession of the vehicle. This sign shall list all instruments as described in §18.92(a)(3) of this subchapter, and shall also state: "Affidavit of Right of Possession and Control Furnished Upon Request." This sign shall be located so it is clearly visible to a vehicle owner at the place of payment, and have letters at least 1 inch in height with a contrasting background.

(5) Combination signs. A vehicle storage facility may combine the signs described in §18.89(1) of this subchapter and paragraphs (2), (3), and (4) of this subsection, provided that the combination sign meets the requirements of each of the separate signs.

(e) Unregistered tow trucks. No vehicle storage facility shall permit any tow truck which is not registered under Transportation Code, Chapter 643, to enter onto the grounds of the facility.

§18.92.Technical Requirements.

(a) Release of vehicles. The licensee shall comply with the following requirements when releasing vehicles.

(1) The licensee shall comply with all provisions of Texas Transportation Code, Chapter 685, relating to the rights of the owner of a stored vehicle, including providing the name, address, and telephone number of :

(A) the justice court that has [ ~~of the peace or magistrate from whose~~ ] jurisdiction in the precinct in which the vehicle storage facility is located; and [ ~~was removed.~~ ]

(B) the name, address and telephone number of the person or law enforcement agency that authorized the tow.

(2) The licensee shall provide the owner or the owner's representative with a tow ticket or wrecker slip as prescribed in §18.88 of this subchapter.

(3) Except as provided in subsection (a)(8) of this section, the [ ~~The~~ ] licensee shall allow the vehicle owner or his/her authorized representative to obtain possession of the vehicle at any time between the hours listed on the facility information sign posted as described in §18.91(d)(1) of this subchapter, upon payment of all fees due, presentation of valid identification (Texas drivers license or other state or federally issued photo identification), and upon presentation of:

(A) a notarized power-of-attorney;

(B) a court order;

(D) a tax collector’s receipt and a vehicle registration renewal card accompanied by a conforming identification;

(E) notarized proof of loss claim of theft from an insurance company to show a right to possession;

(F) positive name and address information corresponding to that contained in the files of the department’s Vehicle Titles and Registration Division; or

(G) a department approved Affidavit of Right of Possession and Control, as defined in §18.82 of this subchapter, which is to be furnished by the licensee upon request (an Affidavit of Right of Possession and Control is not to be used as a repossession instrument).

(4) All vehicle storage facilities shall have vehicles available for release 24 hours a day within one hour’s notice if it accepts vehicles 24 hours a day.

(5) If a vehicle storage facility does not accept vehicles 24 hours a day, such facility must have vehicles available for release within one hour between the hours of 8:00 a.m. and midnight Monday-Saturday and from 8:00 a.m. to 5:00 p.m. on Sundays except for nationally recognized holidays. It is not the intent of this section to require release of vehicles after midnight, and refusal to release after that time, even with notice after 11:00 p.m., is not a violation of this section.

(6) In addition to other forms of payment accepted by the vehicle storage facility, one of the following must be accepted for any charge associated with delivery or storage of a vehicle:

(A) credit card;

(B) debit card; or

(7) the licensee may not refuse to release the vehicle to the vehicle's owner due to nonpayment by the law enforcement agency that directed the towing and storage of the vehicle for evidentiary or examination purposes. The licensee cannot charge the law enforcement agency for costs that accrued after the agency authorized the release of the vehicle.

(8) Pursuant to 37 TAC §4.16, relating to commercial vehicle regulations and enforcement procedures, a commercial motor vehicle stored at the direction of the Texas Department of Public Safety shall not be released until the amount of delinquent administrative penalty assessed against the motor carrier has been paid.

(b) Notification of insurance information. Upon request by the vehicle owner or the vehicle owner’s authorized representative, the licensee shall provide the name, address, and telephone number of the insurance company that is providing required garage keeper’s legal liability insurance coverage to the facility, in addition to the facility’s insurance policy or certificate number for purposes of filing a claim for loss or damage of property. The insurance information shall be the same as that on file with the department.

(c) Publicly listed telephone number. All vehicle storage facilities shall have a publicly listed and operable telephone where the licensee can be contacted. If the telephone number is changed from the number set out in the vehicle storage license application, the licensee shall give the department written notice of the change prior to the date the new number is used. The notice shall include the storage lot’s name, its location, its license number, the old telephone number, and the new telephone number.

(d) Inspection of stored vehicles. When the licensee, the licensee’s agent, or the licensee’s employee accepts a vehicle towed without the vehicle owner’s consent, such person 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 slip are incorrect, the vehicle storage facility shall note on its records the correct number and notify every previously advised person within 48 hours of noting the correct information.

(e) Removal of parts; dismantling or demolishing of stored vehicles. Except as stated to the contrary in this section, no parts shall be removed from any vehicle, and no vehicle shall be dismantled or demolished within the storage area of a licensed vehicle storage facility. Vehicles may be dismantled or demolished only if the storage lot has a certificate of title, certificate of authority to demolish, police auction sales receipt, or transfer document issued by the State of Texas for the vehicle being dismantled or demolished.

(f) Use of stored vehicles. No stored vehicle may be utilized for personal or business use without the written consent of the vehicle’s owner.

(g) Reasonable storage efforts. A vehicle storage facility operator shall make reasonable efforts necessary for the storage of a vehicle, such as locking doors, rolling up windows, and closing doors, hatchbacks, sun roofs, trunks, hoods, or convertible tops. Such actions are included in the storage fee as set forth in §18.93 of this subchapter.

(h) Impoundment of stored vehicles. If doors, windows, convertible tops, hatchbacks, sun roofs, trunks, or hoods are broken or inoperative, materials such as plastic or canvas tarpaulins must be used to ensure the preservation of the stored vehicle. A vehicle storage facility operator is entitled to charge a fee for impoundment if, in addition to the requirements set out in this subsection, the vehicle storage facility operator, at a minimum:

(1) conducts a written inventory of any unsecured personal property contained in the vehicle;

(2) removes and stores all such property for which safekeeping is necessary, and specifies such removal and storage on the written inventory; and

(3) obtains motor vehicle registration information for the vehicle from the department.

(i) Repair or alteration of stored vehicles. A vehicle accepted for storage may not be repaired, altered, or have parts removed or replaced without the vehicle owner’s or his authorized representative’s consent.

(j) Vehicle transfers. When a motor vehicle has been delivered to a vehicle storage facility, the vehicle may not be moved from that facility within the first 31 days of storage without the vehicle owner’s authorization. If it becomes necessary to move the vehicle during the first 31 days of storage because of vehicle storage facility capacity problems, neither the registered vehicle owner nor recorded lienholder(s) may be assessed an additional charge. The vehicle storage facility must send notice in accordance with §18.87 of this subchapter, except that the notice must be sent no less than 72 hours prior to moving the vehicle. If a vehicle is moved from a vehicle storage facility, the licensee shall:

(1) charge only those fees otherwise permitted by §18.93 of this subchapter after the vehicle is towed to another location without the vehicle owner’s permission;

(2) retain records and inform the vehicle owner upon request of the location where the vehicle is at all times from the date on which the vehicle is transferred from the vehicle storage facility until such time as the vehicle is recovered by the vehicle owner, or a new certificate of title, a certificate of authority to demolish, a police auction sales receipt, or a transfer document is issued by the State of Texas; and

(3) maintain a record of the ultimate disposition of the vehicle, including the date and name of the person to whom the vehicle is released or a description of the document under which the vehicle was sold or demolished.

§18.93.Storage Fees and Charges.

The fees outlined in this section have precedence over any conflicting municipal ordinance or charter provision.

(1) Notification fee.

(A) A vehicle storage facility operator may not charge a vehicle owner more than $50 [ ~~$32~~ ] for notification under §18.87 of this subchapter. If a notification must be published as specified under §18.87 of this subchapter, and the actual cost of publication exceeds 50% of the notification fee, the VSF operator may recover the additional amount of the cost of publication. The publication fee is in addition to the notification fee.

(B) If a vehicle is removed by the vehicle owner within 24 hours after the date the operator receives the vehicle, notification is not required under §18.87 of this subchapter.

(C) If a vehicle is removed by the vehicle owner before notification is sent or within 24 hours from the time the operator receives the vehicle, the VSF operator may not charge a notification fee to the vehicle owner.

(2) Daily storage fee. A vehicle storage facility operator may not charge less than $5.00 or more than $20 [ ~~$15~~ ] for each day or part of a day for storage of a vehicle that is 25 feet or less in length. A vehicle storage facility operator shall charge a fee of $35 [ ~~$30~~ ] for each day or part of a day for storage of a vehicle that exceeds 25 feet in length.

(A) A daily storage fee may be charged for any part of the day, except that a daily storage fee may not be charged for more than one day if the vehicle remains at the vehicle storage facility less than 12 hours. In this paragraph a day is considered to begin and end at midnight.

(B) A vehicle storage facility operator that has accepted into storage a vehicle registered in this state shall not charge for more than five days of storage fees until a notice, as prescribed in §18.87 of this subchapter, is mailed or published.

(C) A vehicle storage facility operator that has accepted into storage a vehicle not registered in Texas shall not charge for more than five days before the date the request for owner information is sent to the appropriate governmental entity. Such requests shall be correctly addressed, with sufficient postage, and sent by certified mail, or electronic certified mail, return receipt requested, to the governmental entity with which the vehicle is registered requesting information relating to the identity of the last known registered owner and any lienholder of record.

(D) [ ~~(C)~~ ] A vehicle storage facility operator shall charge a daily storage fee after notice, as prescribed in §18.87 of this subchapter, is mailed or published for each day or portion of a day the vehicle is in storage until the vehicle is removed and all accrued charges are paid.

(3) Impoundment fee. A vehicle storage facility operator may charge a vehicle owner an impoundment fee if impoundment is performed in accordance with §18.92(h) of this subchapter. The impoundment fee may not exceed $20. If the vehicle storage facility operator charges a fee for impoundment, the written bill for services must specify the exact services performed for that fee and the dates those services were performed.

(4) Governmental or law enforcement fees. A vehicle storage facility operator may collect from a vehicle owner any fee that must be paid to a law enforcement agency, the agency’s authorized agent, or a governmental entity.

(5) Additional fees. A vehicle storage facility operator may not charge any additional fees related to the storage of a vehicle other than fees authorized by this section or a nonconsent towing fee posted on a nonconsent towing fees schedule on file with the department and posted at the vehicle storage facility [ ~~that are similar to notification or impoundment fees. A vehicle storage facility operator may not charge an administrative fee~~ ].

§18.96.Disposal of Certain Vehicles.

(a) Applicability. A VSF operator may not dispose of a vehicle unless the operator has complied with all provisions of the Act, including §§2303.151 - 2303.154 and 2303.157, concerning notification and disposal of abandoned vehicles.

(b) Notification of proposed disposal. A vehicle storage facility operator shall notify the registered owner and all recorded lienholders of the proposed disposal of the vehicle in accordance with §§2303.151 - 2303.154 of the Act concerning notification.

(c) Notification of abandonment. A vehicle storage facility operator shall notify law enforcement of the abandonment of the vehicle in accordance with §2303.154 of the Act.

(d) [ ~~(c)~~ ] Documentation and records. A vehicle storage facility operator shall keep complete and accurate records of any vehicle disposed of under §2303.157 of the Act. These records shall include:

(1) a copy of the VTR-265VSF form or its successor completed by the vehicle storage facility operator and provided to the vehicle buyer;

(2) copies of all notifications issued to the registered owner and all recorded lienholders, regardless of whether the notifications were mailed or published; and

(3) a copy of the VTR-71-6 form or its successor submitted to the department for authority to dispose of and demolish an abandoned nuisance vehicle.

(e) [ ~~(d)~~ ] Public sale. A vehicle storage facility operator may dispose of a vehicle through a public sale in compliance with §2303.157 of the Act. Disputes over the sale or dispersal of proceeds from the sale of the vehicle may be pursued through a court of appropriate jurisdiction.

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 November 18, 2005.

TRD-200505339

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 1, 2006

For further information, please call: (512) 463-8630

Chapter 25. TRAFFIC OPERATIONS

Subchapter A. GENERAL

43 TAC §25.1

The Texas Department of Transportation (department) proposes amendments to §25.1, Uniform Traffic Control Devices, concerning the Texas Manual on Uniform Traffic Control Devices (Texas MUTCD). The Texas MUTCD is amended periodically to maintain substantial compliance with the National Manual on Uniform Traffic Control Devices (National MUTCD), to allow use of a single manual for local, state, and Federal-aid highway projects. These amendments incorporate the latest federal requirements of the National MUTCD into the Texas MUTCD.

The National MUTCD defines the standards used by road managers nationwide to install and maintain traffic control devices on all streets and highways open to public travel. The National MUTCD is published by the Federal Highway Administration (FHWA) under Title 23, Code of Federal Regulations, Part 655, Subpart F.

The FHWA has recently completed a major revision and reformat of the National MUTCD. All states are required to adopt the provisions of this new federal manual.

Section 25.1(a) adopts by reference the 2006 Texas MUTCD. In addition, the amendments add bicycle trails to the types of transportation facilities in which the Texas MUTCD applies. This section also clarifies that the Texas MUTCD only applies to streets, highways, and bicycle trails that are open to public travel.

The amendment also provides that the Texas MUTCD will be available online through the department’s website and will no longer be published. For those unable to access the department’s website, copies are available on request. Subsections (d) and (e) are no longer necessary and are deleted from the proposed rule.

FISCAL NOTE

James Bass, Chief Financial Officer, has determined that for each of the first five years the amendments are in effect, there will be minimal fiscal implications for state or local governments as a result of enforcing or administering the amendments.

Traffic control devices that are installed after the adoption of the manual will be required to be in compliance with the standards of the new manual. There are minimal anticipated economic costs to persons required to comply with the amendments as proposed.

Carlos A. Lopez, P.E., Director, Traffic Operations Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.

PUBLIC BENEFIT

Mr. Lopez also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the amendments will be a more uniform use of traffic control devices and increased highway safety. There will be no adverse economic effects on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments may be submitted to Carlos A. Lopez, P.E., Director, Traffic Operations Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments will be 5:00 p.m. on January 2, 2006.

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §201.101, which authorizes the Texas Transportation Commission to promulgate rules for the conduct of the work of the department.

CROSS REFEREMCE TO STATUTE

Transportation Code §544.001

§25.1.Uniform Traffic Control Devices.

(a) The 2006 [ ~~2003~~ ] Texas Manual on Uniform Traffic Control Devices, which is filed with this section and hereby incorporated by reference, was prepared as required by law to govern standards and specifications for all such traffic control devices to be erected and maintained upon all streets, highways , and bicycle trails that are open to public travel within this state, including those under local jurisdiction. Copies of the manual are available online through [ ~~may be obtained at~~ ] the Texas Department of Transportation web site, www.dot.state.tx.us [ ~~, 125 East 11th Street, Austin, Texas 78701~~ ], and are on file for public inspection with the Office of the Secretary of State, Texas Register Division, James Earl Rudder State Office Building, Room 245, Austin, Texas 78711.

(b) This manual will be periodically updated. In the intervals between updates, standards contained in "Official Rulings on Requests for Interpretations, Changes, and Experimentation" to the United States Department of Transportation's Manual on Uniform Traffic Control Devices for Streets and Highways will be inserted in this manual and may be used as interim standards.

(c) This manual is not intended to preclude the use of sound engineering judgment and experience in the application and installation of devices and particularly in those cases not specifically covered which must not conflict with the manual or other applicable state laws.

~~[ ~~(d)~~ This manual will be sold for a price based upon the then current cost to the department, except that certain public entities may be entitled to free copies.]~~

~~[ ~~(e)~~ The manual will be available on the department's internet website at www.dot.state.tx.us.]~~

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 November 18, 2005.

TRD-200505340

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 1, 2006

For further information, please call: (512) 463-8630

Subchapter B. PROCEDURES FOR ESTABLISHING SPEED ZONES

43 TAC §§25.21, 25.23, 25.25

The Texas Department of Transportation (department) proposes amendments to §§25.21, 25.23 and 25.25 concerning procedures for establishing speed zones.

EXPLANATION OF PROPOSED AMENDMENTS

House Bill 2257, 79th Legislature, Regular Session, 2005, expands the number of counties that are eligible for a maximum 75 mile per hour daytime speed limit as established by the Texas Transportation Commission (commission). House Bill 2257 also authorizes the commission to establish a maximum speed limit of 80 miles per hour on Interstate Highway 10 and Interstate Highway 20 in certain counties.

Section 25.21, Introduction, implements the legislative changes by adding the counties that now qualify for the 75 mile per hour speed limit. The amendment also states the counties eligible for the 80 mile per hour speed limit as authorized in House Bill 2257. Amendments to this section also note that the maximum speed allowed on a portion of the Trans-Texas Corridor is 85 miles per hour as authorized under Transportation Code, §545.3531.

Various changes to §25.23, Speed Zone Studies, allow a four hour observation period for a speed study if performed with a traffic counter that classifies vehicles by type. These changes reflect current agency practice and are non-substantive in nature.

Section 25.23(c)(5), clarifies that when a study indicates that the 85th percentile speed is at or below 50 miles per hour, the resulting school zone speed limit should not be set more than 15 miles per hour below the 85th percentile speed. The current language only states that this requirement applies to 85th percentile speeds of below 50 miles per hour. This is not a significant change and is included only as clarification.

Section 25.25, Application of Advisory Speeds, is amended to allow for the use of manual or electronic ball-bank indicators for use in determining the advisory speed limit for curves and turns. The Procedures for Establishing Speed Zones Manual (procedures manual) includes detailed information on the use of the ball-bank indicator, therefore, all references about how to use the ball-bank indicator have been deleted from the proposed rule. Figures 2, 4, and 5 in §25.25 are deleted. By deleting §25.25(b)(3) - (8), the department is able to update the procedures manual to accommodate the use of new technology.

FISCAL NOTE

James Bass, Chief Financial Officer, has determined that for each of the first five years the amendments as proposed are in effect, there will be no significant fiscal implications for state or local governments as a result of enforcing or administering the amendments. There are no anticipated economic costs for persons required to comply with the sections as proposed.

PUBLIC BENEFIT

Mr. Lopez has also determined that for each of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the amendments will be more efficient operation of the state highway system, more uniform creation of speed limits on the state highway system, and implementation of the requirements of House Bill 2257. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department.

CROSS REFERENCE TO STATUTE

Transportation Code, §545.353, and §545.3531

§25.21.Introduction.

(a) (No change.)

(b) Background.

(1) (No change.)

(2) Authority to set speed zones.

(A) (No change.)

(B) Transportation Code, §545.353, subsections (h) and (i), address the commission’s authority to establish a daytime speed limit of 75 or 80 miles [ ~~mile~~ ] per hour on a portion of the state highway system.

(i) The commission may establish [ ~~such~~ ] a 75 mile per hour speed limit in counties with a population density of less than 15 [ 10 ] persons per square mile. Counties that are currently eligible for this higher maximum daytime speed limit are Andrews, Archer, Armstrong, Bailey, Baylor, Blanco, Borden, Brewster, Briscoe, Brooks, Callahan, Carson, Castro, Childress, Clay, Cochran, Coke, Coleman, Collingsworth, Concho, Cottle, Crane, Crockett, Crosby, Culberson, Dallam, Deaf Smith, Dickens, Dimmit, Donley, Duval, Edwards, Fisher, Floyd, Foard, Frio, Gaines, Garza, Glasscock, Goliad, Hall, Hamilton, Hansford, Hardeman, Hartley, Haskell, Hemphill, Hudspeth, Irion, Jack, Jeff Davis, Jim Hogg, Kenedy, Kent, Kimble, King, Kinney, Knox, Lamb, La Salle, Leon, Lipscomb, Live Oak, Loving, Lynn, Martin, Mason, McCullough, McMullen, Menard, Mills, Mitchell, Motley, Ochiltree, Oldham, Parmer, Pecos, Presidio, Reagan, Real, Red River, Reeves, Refugio, Roberts, Runnels, San Saba, Schleicher, Shackelford, Sherman, Stephens, Sterling, Stonewall, Sutton, Swisher, Terrell, Terry, Throckmorton, Upton, Val Verde, Ward, Wheeler, Winkler, Yoakum , Zapata, and Zavala.

(ii) The department will reevaluate which counties are eligible for [ ~~such~~ ] a 75 mile per hour speed limit upon the release of each decennial federal census of the population.

(iii) The commission may establish a speed limit of 80 miles per hour for daytime on parts of Interstate Highway 10 and of Interstate Highway 20 in Crockett, Culberson, Hudspeth, Jeff Davis, Kerr, Kimble, Pecos, Reeves, Sutton, or Ward counties.

(iv) [ ~~(iii)~~ ] In order to establish a 75 or 80 mile per hour daytime speed limit in an eligible county, the commission must determine that a 75 or 80 mile per hour speed limit is safe and reasonable.

(v) [ ~~(iv)~~ ] A 75 or 80 mile per hour speed limit established under this section does not apply to trucks (other than light trucks and light trucks pulling a trailer), truck tractors, trailers, and semitrailers.

(D) Transportation Code, §545.355 and §545.356 , give counties and cities the same authority within their respective jurisdictions. The law also provides that any speed zone on highway routes in cities established by commission minute order will supersede any conflicting zone set by city ordinance or resolution.

(E) - (K) (No change.)

(L) Transportation Code, §545.3531, authorizes the commission to establish a speed limit of not more than 85 miles per hour on the Trans-Texas Corridor.

(3) (No change.)

§25.23.Speed Zone Studies.

(a) (No change.)

(b) Determining the 85th percentile speed.

(1) - (2) (No change.)

(3) Operation of speed check stations.

(A) Normal speed checks should:

(i) - (iv) (No change.)

(v) be discontinued after two hours using a radar or four hours if performed by a traffic counter that classifies vehicles by type , even if 125 cars have not been timed.

(B) - (C) (No change.)

(4) Location of speed check stations.

(A) - (B) (No change.)

(i) - (ii) (No change.)

(iii) may be determined by trial runs through the area if the characteristics of the roadway are consistent throughout the entire section and a speed check in that section indicates that 125 vehicles cannot be checked in the two hours using a radar or four hours if performed by a traffic counter that classifies vehicles by type .

(5) (No change.)

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

(5) When the results of a speed study indicate an 85th percentile speed at or below 50 miles per hour, the reduced school speed limit should not be more than 15 miles per hour below the 85th percentile speed or normal posted speed limits. If the 85th percentile speed is 55 miles per hour, the reduced school speed limit should be 20 miles per hour below the 85th percentile speed. Any roadway with an 85th percentile speed greater than 55 miles per hour requires a buffer zone to transition down to a 35 mile per hour speed limit.

(6) (No change.)

(d) Speed zone design.

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

(5) Variation from 85th percentile.

(A) The posted speed selected is the nearest value ending in 5 or 0. The final speed limit may be lowered or raised by as much as 5 miles per hour from the 85th percentile speed or trial-run speed (performed if 125 cars cannot be checked during the two or four hour speed check) based on the professional judgment of the supervising engineer. Only under special conditions would the zone speed vary further from the 85th percentile. Explanations of such conditions follow.

(i) - (ii) (No change.)

(iii) Light traffic volumes. At locations where traffic volumes are light and 125 cars cannot be checked in the two or four hours that the speed check station is operated, the 85th percentile speed may not be reliable. Trial runs need to be made and documented in the study.

(iv) (No change.)

(v) Additional roadway factors. The posted speed limit may be reduced by as much as 10 miles per hour (12 miles per hour for locations with crash rates higher than the statewide average) below the 85th percentile speed or trial-run speed (performed if 125 cars cannot be checked during the two or four hour speed check) based on sound and generally accepted engineering judgment that includes consideration of the following factors:

(I) - (VII) (No change.)

(B) - (C) (No change.)

(D) Speed limits should not be posted more than 10 miles per hour (12 miles per hour for locations with crash rates higher than the statewide average) below the 85th percentile or trial-run speed (performed if 125 cars cannot be checked during the two or four hour speed check) since unreasonably low speed limits have not been shown to be an effective way to control speeding. Allowing too great a variation would risk losing motorist respect for speed limits and traffic control devices.

(6) - (8) (No change.)

(e) - (f) (No change.)

§25.25.Application of Advisory Speeds.

(a) Overview.

(1) (No change.)

(2) Advisory speed sign posting.

(A) - (B) (No change.)

Figure [1]: 43 TAC §25.25(a)(2)(C)

(b) Curves and turns.

(1) Introduction

(A) - (B) (No change.)

(C) The speed to be posted will be based on results obtained from test runs in a vehicle equipped with a [~~the~~] ball-bank indicator, not the calculated value. The ball-bank indicator can be electric or manual. [ ~~Examples of ball-bank indicators are shown in the following Figure 2. (See discussion of "Calculated Speed" in paragraph (2) of this subsection).~~ ]

[ ~~Figure 2: 43 TAC §25.25(b)(1)(C)~~ ]

(2) Calculated speed.

(A) For curves and turns, the calculated speed is to be used as a guide for making the initial test run and as a check on the speed obtained by the use of the ball-bank indicator. The calculated speed is not, however, to be used as the sole basis for selecting the posted speed. See "Selecting Speed for Posting" in paragraph (3) [ ~~(9)~~ ] of this subsection for additional discussion.

(B) Calculate the design speed of the curve under consideration using the following formula.

Figure [3]: 43 TAC §25.25(b)(2)(B)

~~[(3) ~~Selection of car and mounting of ball-bank indicator.~~ ]~~

~~[ ~~(A)~~ Select an average passenger car for making the test runs and mount the ball-bank indicator on the center line of the dash.]~~

~~[ ~~(i)~~ Suitable metal strap mountings can be made on which to mount the indicator, as shown in the following Figure 4.]~~

~~[ ~~Figure 4: 43 TAC §25.25(b)(3)(A)(i)~~ ]~~

[ ~~(ii)~~ The metal strap holding the right-hand side of the indicator on dash mountings should be slotted and a thumb nut provided so the steel ball can be adjusted to the zero degree position by raising or lowering the right side of the indicator.]

~~[ ~~(B)~~ If there is any doubt about the selection of an average car, a ball-bank indicator should be mounted on three different makes or year models for a check.]~~

~~[ ~~(4)~~ Before conducting test runs. To ensure proper operation of the ball-bank indicator, it is critical that the following steps be taken before conducting test runs.]~~

~~[ ~~(A)~~ Inflate all tires to the uniform pressure used during speedometer calibration.]~~

~~[ ~~(B)~~ Calibrate the test vehicle's speedometer in accordance with paragraph (5) of this subsection.]~~

~~[ ~~(C)~~ Zero the ball-bank indicator (see procedure in paragraph (6) of this subsection).]~~

~~[ ~~(5)~~ Calibrating speedometer.]~~

~~[ ~~(A)~~ It is essential that speedometers be calibrated accurately so that advisory speeds will be uniform throughout the state.]~~

[ ~~(B)~~ Calibrate the speedometer for recording of speed. The accuracy of the odometer for recording distance should be checked against a measured distance. Calibration for speed can be done easily with a radar speed meter or by timing the car over a measured distance. The speedometer should be checked for each 5 mile per hour interval over 20 miles per hour, and several test runs should be made for each speed so that an average value may be obtained.]

~~[ ~~(6)~~ Zeroing the ball-bank indicator.]~~

~~[ ~~(A)~~ The ball-bank indicator must be adjusted to the zero reading before test runs are conducted.]~~

[ ~~(B)~~ This must be done with the car straddling the center line of the pavement on a tangent section to give the effect of a flat level surface, and the driver and recorder in the same position in which they will ride during the test runs. It is essential that the driver and recorder be in the same position when the ball-bank indicator is set to the zero reading as they will be when the test runs are made, because a shift in the load is reflected in a change of the ball-bank indicator reading.]

~~[ ~~(7)~~ Conducting ball-bank indicator test runs.]~~

~~[ ~~(A)~~ The curve should be driven at the calculated speed described in paragraph (2) of this subsection on the initial run.]~~

[ ~~(B)~~ If the calculated speed is not available, the curve should be driven at an estimated speed approximately 5 miles per hour slower than that which the driver feels he or she can maintain throughout the entire length of the curve.]

~~[ ~~(C)~~ Each succeeding run should be made at a speed 5 miles per hour greater than the preceding run until the ball-bank indicator reading reaches:]~~

~~[ ~~(i)~~ 10 degrees for speeds of 35 miles per hour or more;]~~

~~[ ~~(ii)~~ 12 degrees for speeds of 25 and 30 miles per hour; or]~~

~~[ ~~(iii)~~ 14 degrees for speeds of 20 miles per hour or less.]~~

[ ~~(D)~~ On each test run, the driver should reach the test run speed at a distance of at least 0.25 mile from the beginning of the curve and maintain this speed throughout the entire length of the curve. The path of the car throughout the curve should be maintained as nearly as possible in the center of the right hand lane.]

~~[ ~~(E)~~ Test runs should be made in each direction on each curve.]~~

[ ~~(F)~~ On each of the speeds of the test runs, the observer must carefully note the position of the ball throughout the length of the curve and record the maximum deflection in degrees. The readings should be interpolated as closely as possible to the nearest degree.]

[ ~~(8)~~ Alternate ball-bank indicator test run method. An alternate procedure, intended to minimize the number of test runs required to determine the speed for which the curve is to be posted, is as follows.]

[ ~~(A)~~ Drive the car at a speed of 5 miles per hour around the curve, staying as nearly as possible in the center of the right hand lane, and record the maximum deflection of the ball-bank indicator in degrees.]

~~[ ~~(i)~~ Record the reading of the ball-bank indicator as plus if the deflection of the ball is to the right on a right hand curve and to the left on a left hand curve.]~~

~~[ ~~(ii)~~ Record the reading of the ball-bank indicator as minus if the deflection of the ball is to the left on a right hand curve and to the right on a left hand curve.]~~

~~[ ~~(B)~~ Drive around the curve at a constant speed that can be maintained without acceleration or deceleration and without driving outside the right-hand traffic lane.]~~

~~[ ~~(i)~~ Record the maximum deflection of the ball-bank indicator.]~~

~~[ ~~(ii)~~ Record the speed at which the curve was driven.]~~

~~[ ~~(C)~~ Compute the maximum safe speed for the curve by solving the following formula for V2:]~~

~~[ ~~Figure 5: 43 TAC §25.25(b)(8)(C)~~ ]~~

[ ~~(D)~~ Drive around the curve, staying in the right-hand lane, at the calculated speed V2 without acceleration or deceleration as a check on measurements and computations. The ball-bank indication recorded at speed V2 should then be:]

~~[ ~~(i)~~ 10 degrees for speeds of 35 miles per hour or more;]~~

~~[ ~~(ii)~~ 12 degrees for speeds of 25 and 30 miles per hour; or]~~

~~[ ~~(iii)~~ 14 degrees for speeds of 20 miles per hour or less.]~~

(3) [ ~~(9)~~ ] Selecting speed for posting.

(A) Remember, the speed to be posted shall be based on the results obtained from test runs with the ball-bank indicator [ ~~(described in paragraphs (7) and (8) of this subsection)~~ ], not the calculated value.

(B) The posted speed shall be a multiple of 5 miles per hour.

(C) In selecting the speed to be posted, care should be taken that the calibrated speed for any given speedometer reading is used rather than the speedometer reading itself.

(D) As a final check, the posted speed is aimed at the highest value that will permit the average car to travel around the curve in its own lane without causing an uncomfortable side throw to its passengers.

(E) The speed to be posted on the curve should not be reduced arbitrarily below that determined by ball-bank indicator test runs [ ~~the procedures provided in this subsection~~ ].

(F) When there is a reverse curve or a series of three or more curves, the advisory speed sign shall show the value for the curve having the slowest safe speed in the series.

(e) Descending grades of six percent or greater.

(1) - (2) (No change.)

(3) Calculation. Using the minimum sight distance as the safe stopping distance, the critical speed should be calculated from the following formula.

Figure [6]: 43 TAC §25.25(e)(3)

(4) (No change.)

(f) (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 November 18, 2005.

TRD-200505341

Richard D. Monroe

General Counsel

Texas Department of Transportation