Part 6.
TEXAS MOTOR VEHICLE BOARD
Chapter 103.
GENERAL RULES
16 TAC §103.15, §103.16
The Texas Motor Vehicle Board of the Texas Department of
Transportation adopts new 16 TAC §103.15 and §103.16, concerning
the renewal of licenses and the administration of fees generated by new and
renewal licenses, as published in the September 10, 2004, issue of the
Explanation of New Rules
New 16 TAC §103.15 and §103.16 are intended to replace and expand
16 TAC §111.13, Refund of Fees, which applied to holders of general distinguishing
numbers, rather than to the entire licensee body. Section 111.13 is being
simultaneously repealed.
New §103.15 provides guidelines governing the assessment and refund
of certain fees during the licensing process. Subsection (a) of §103.15
states that no refund of licensing fees will be made if a license is cancelled,
either voluntarily or involuntarily. Additionally, §103.15 states in
subsection (b) that the Board will charge a fee to issue a duplicate copy
of a license. This language implements the Board's authority under the Texas
Occupations Code §2301.264(a)(8), which directs the Board to collect
a $50 fee for the issuance of a duplicate license. The rule also provides
for a one-time exception to the collection of the duplicate license fee if
the licensee does not receive the license and makes a timely request for its
replacement. Section 103.15, subsection (c) allows an applicant for a license
to withdraw an application prior to issuance, and receive a full refund of
paid licensing fees, if requested in writing. Subsections (d) and (e) of §103.15
allow the Board to retain paid licensing fees as earned fees when an applicant
for a new or renewal license abandons an application and fails to request
a refund of fees within a specified period of time.
New §103.16 states that a licensee must file a complete renewal application
before the current license expires. It also states that if the licensee fails
to submit a renewal application with all required information and fees within
90 days of the date of expiration of the current license, then that licensee
will be required to apply for a new license. This language provides a framework
for the implementation of the Board's authority under the Texas Occupations
Code §2301.264(b), which states that a person who fails to apply for
a license or pay a fee required under the Occupations Code must pay a penalty
for each 30 days of delinquency. The proposed language of the rule institutes
a 90-day limit for that occurrence to encourage licensees to make timely application
for renewal, and also, to minimize administrative difficulties in allowing
the renewal of licenses after expiration.
The new rules were proposed to provide a clearer explanation of the Board's
regulations governing fees and renewals for all licensees, and to increase
the agency's ability to conserve its administrative and accounting resources
in dealing with delinquent parties and payments.
Summary of Comments
No written comments were received on the proposal. No oral comments were
received at the public hearing on December 9, 2004.
Statutory Authority
The Board is authorized to adopt the new sections under Texas Occupations
Code §2301.153 and §2301.155 and Texas Transportation Code §503.002,
which provide the Board with authority to adopt rules as necessary and convenient
to effectuate the provisions of the Chapters and to govern practice and procedure
before the Board.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 4, 2005.
TRD-200500022
Brett Bray
Director
Texas Motor Vehicle Board
Effective date: January 24, 2005
Proposal publication date: September 10, 2004
For further information, please call: (512) 416-4899
16 TAC §103.17
The Texas Motor Vehicle Board of the Texas Department of
Transportation adopts new 16 TAC §103.17, concerning the definition of
motor vehicle under the Texas Occupations Code, as published in the October
15, 2004, issue of the
Texas Register
(29
TexReg 9616). Section 103.17 is adopted without changes and will not be republished.
Explanation of New Rule
New 16 TAC §103.17 seeks to clarify the definition of motor vehicle,
as stated under Texas Occupations Code §2301.002(23)(A), to include motorized
scooters and other equivalent vehicles.
A motorized scooter will meet the definition of motor vehicle under new
16 TAC §103.17 if it can commence and continue movement without manual
assistance, as stated in §103.17(a)(1), and if its primary purpose is
the transport of persons or property on public roadways, under §103.17(a)(2).
In order for a vehicle to meet the requirement listed under subsection (a)(2),
it must be either certified as a moped by the Texas Department of Public Safety
under subsection (a)(2)(A), or be capable of certification as a motor vehicle
by the National Highway Traffic Safety Administration under subsection (a)(2)(B).
However, if a motorized scooter is not certified under either (a)(2)(A) or
(B), then it may still be deemed a motor vehicle if it meets 3 of 5 alternative
criteria listed under subsection (a)(2)(C). The new rule further clarifies
in §103.17(b) that it does not include go-carts or motorized mobility
devices.
Summary of Comments
Written and spoken comments on the proposed new rule were submitted by
the Texas Motorcycle Dealers Association ("TMDA"); Yamaha Motor Corporation;
Pep Boys-Manny, Moe & Jack of Delaware, Inc. ("Pep Boys"); The City of
Dallas Police Department, Traffic Section; Manco Power Sports; and licensed
Texas franchised motorcycle dealers. A number of Texas franchised motorcycle
dealers also submitted written comments in favor of TMDA's position, but did
not appear to speak at the public hearing held at the Board's regularly scheduled
meeting on December 9, 2004.
In Favor
Attorney Will Wilson, Wilson & Varner, submitted written comments and
spoke on behalf of TMDA. Robert Barger, President of TMDA, also submitted
extensive written comments regarding the proposed new rule. TMDA favors the
new rule requiring regulation of motorized scooters, pocket bikes, and similar
vehicles. However, it also expressed concerns that the proposed new rule will
not go far enough, because it does not require the regulation of all off-road
vehicles.
In TMDA's comments, it stated that most of the vehicles to which this rule
would apply are strictly for off-road use. Therefore, it argued both in writing
and before the Board that the rule must include wording that it applies both
to vehicles whose primary purpose is transporting persons/property on public
roadways AND vehicles whose primary purpose is operating in off-road conditions.
Otherwise, TMDA believes the rule will create confusion amongst the motorcycle
dealer body and other potential licensees.
TMDA suggested alterations to the proposed language of the new §103.17,
eliminating the distinction between off-road vehicles legally requiring titles
and those not requiring titles. It argued that many vendors of motorized scooters
and like vehicles are currently in violation of the law because they are not
in compliance with dealer licensing and vehicle titling regulations under
the Texas Transportation Code and the Texas Occupations Code. It stated the
new rule, as proposed, allows vendors to easily avoid its intended purpose,
as one need only warn against on-road use.
To support its arguments, TMDA relied on language found in Texas Occupations
Code §§2301.001, 2301.002(23), and various sections of the Texas
Transportation Code §§501.001, et seq. to support this proposition.
Additionally, TMDA suggested changing the proposed rule to apply to motorized
scooters or other vehicles that can reach speeds of at least 15 mph, provided
they meet the other defined criteria.
Furthermore, TMDA believes that the lack of regulation of motorized scooters,
pocket-bikes, and similar products creates danger to the health and safety
of the general public. It recognized that having regulated, licensed dealers
will aid consumers, protecting their welfare and investment. It stated that
the Board has a duty to regulate the distribution and sale of motor vehicles
to protect the economy and welfare of the general public. For that reason,
TMDA requested that the Board enact the rule, with changes, on an expedited
basis under Texas Government Code §2001.036.
A number of Texas franchised motorcycle dealers wrote and spoke in favor
of the position held by TMDA. The dealers, from various areas of Texas, suggested
that it was necessary for the Board to maintain a level playing field for
all purveyors of motorized scooters, pocket bikes, and like vehicles. These
dealers agreed that the TMDA suggested language would best ensure that.
Attorney Walter G. Pettey, III, Little Pedersen Fankhauser LLP, provided
written and spoken comments for Yamaha Motor Corporation, USA ("Yamaha"),
favoring the proposed new §103.17. However, Yamaha expressed concerns
that the new rule would unintentionally apply to golf carts, because they
were not specifically excluded in subsection (b) of the new rule. Yamaha proposed
an alternative version of the rule that would specifically exclude golf carts
from the rule.
Attorney Tania M. Hepfner, Piper Rudnick LLP, offered written and spoken
comments on behalf of Pep Boys. The genesis of the controversy involving motorized
scooters and other motorized products was brought before the Board some months
ago, resulting from a request for a formal opinion filed by Pep Boys. Pep
Boys became concerned about this issue because it would have to obtain licenses
for each brand of motorized scooter or like vehicle were it to fall under
the Board's definition of motor vehicle.
Based on the discussions arising from consideration of Pep Boys' request,
the Board elected to address the question regarding these products with new
16 TAC §103.17. In its written and oral comments Pep Boys supports the
idea of some general statement to better define "motor vehicle" under the
Occupations Code. However, it feels that some of the proposed language will
create further ambiguity. Also, it is concerned that "motorized toys" and
"novelty devices" will be classified and regulated as motor vehicles. Therefore,
it suggested alternative language eliminating certain definitions and criteria
because it believes that would simplify the rule and its application.
Additionally, Pep Boys feels the maximum speed and range barriers which
define what scooters or other such vehicles could be regulated as motor vehicles
are too low. Instead, it suggested raising the maximum speed and maximum range
allowed for motorized products, before their distribution becomes eligible
for regulation by the Board. Pep Boys suggested these alternatives based upon
research it conducted regarding national averages for school zone speed and
street legal scooter distance capability. Furthermore, it believes the engine,
weight and tire size test prongs are unnecessary, and implicitly a part of
the speed and distance barriers.
Mr. Jim Rafac, Vice President of Engineering, Manco Power Sports, also
appeared before the Board to speak in favor of the rule. Manco Power Sports
is a manufacturer of go-carts, motorized scooters, and other recreational
vehicles. Manco Power Sports stated that the rule represented a great deal
of work by participants and staff. He also urged the Board to make sure the
definition of motor vehicle proposed by the rule truly closes the loopholes
for these types of vehicles.
Against
Senior Corporal Anita Dickason, Accident Investigation, Traffic Section,
of the Dallas Police Department ("Traffic Section") presented spoken comments,
accompanied by an audio/visual presentation, opposing new 16 TAC §103.17.
The City of Dallas Police Department, Traffic Section, also provided written
comments in opposition to the new rule.
The Traffic Section tracks motor vehicle accidents, and has noticed an
increasing number of accidents involving motorized scooters and pocket bikes.
Pocket bikes are defined as scooters whose engine size is in the Moped classification,
but do not meet Moped certification standards. The Traffic Section also promotes
public education programs involving these and other types of vehicles.
The Traffic Section agrees that the sale of motorized products should be
regulated through licensed dealers. Yet, it expressed concerns that new §103.17,
by expanding the definition of motor vehicle to include certain motorized
products, establishes a precedent that such products are "street legal." The
Traffic Section believes that many of the motorized scooters represent a great
danger to the public, because they lack basic safety equipment. Additionally,
they often do not require insurance, inspection, or licenses to operate. Furthermore,
these mini-vehicles have no age limits for operation, and are nearly invisible
to other drivers. Thus, the Traffic Section maintains they should not be considered
motor vehicles for transport on public streets, roads or highways.
In support of its viewpoint, the Traffic Section provided photographs demonstrating
the poor visibility of the products. Also, it presented actual accident data
involving motorized products, included pictorial representations of accidents.
Many of these incidents resulted in serious injuries.
Part of the problem, from the Traffic Section's perspective, is that there
are a myriad of different definitions of motor vehicle. It argued that the
new rule would allow manufacturers to avoid providing adequate safety equipment,
like turn signals and brake lights, because the products may be deemed street
legal in their existing form. It stated that this could cause an adverse impact
on traffic enforcement. Fundamentally, the Traffic Section argued that the
Legislature needs to take action on these crucial issues.
Reasons for Disagreement with Party Submissions or Proposals
The Board disagrees that new §103.17 will have any precedential value
with regard to the definition of "street legal" vehicles for purposes of traffic
enforcement. The purpose behind the publication and adoption of the new rule
is to determine whether the Board will require a license for the distribution
of these motorized products. The Board disagrees that it should wait for the
Legislature to address the issue. It believes that it must provide a level
playing field for all dealers, as well as consumer protection in the form
of correct product information and warranty recalls.
Furthermore, the Board recognizes that its jurisdiction extends only to
the distribution of motor vehicles, as defined under the Occupations Code.
Therefore, it cannot define what vehicles are street legal, and which vehicles
require titles. These decisions rest with other state and Federal agencies.
Similarly, the Board disagrees that it can regulate all off-road vehicles
under this new rule. The Occupations Code clearly defines "motor vehicle"
as including off-road vehicles that are required to be titled. The Board feels
that it would be beyond the reach of its jurisdiction to attempt to regulate
all off-road vehicles through this rule, as that would fall outside the legislative
definition of motor vehicle.
Regarding the criteria chosen to judge motorized products as motor vehicles,
the staff developed the criteria after consultation with affected groups-including
manufacturers, motorcycle dealers, distributors, and other state agencies.
Additionally, some of the criteria match Federal guidelines defining motor
vehicles. The staff represented that it had no intention of attempting to
interpret guidelines that are determined by other agencies, such as the National
Highway Traffic & Safety Administration or the Texas Department of Transportation's
Vehicle Title and Registration Division. Instead, the staff explained that
when questions arise, it would consult directly with the appropriate agency
to determine if a particular vehicle falls into a category.
With respect to whether golf carts are specifically excluded from the rule,
the Board acknowledged the comments, but decided that it was unnecessary-at
this time-to distinguish between golf carts and motorized scooters. The Board
announced that it had no intention of regulating golf carts as motor vehicles
through this rule. The staff suggested that the Board consider golf carts
as a separate issue, and perhaps amend the rule at a later date, adding an
exclusion for them. The Board agreed with this approach.
Statutory Authority
The Board is authorized to adopt the new rule under Texas Occupations Code §2301.153
and §2301.155, which provide the Board with authority to adopt rules
as necessary and convenient to effectuate the provisions of this Chapter and
to govern practice and procedure before the Agency.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 6, 2005.
TRD-200500058
Brett Bray
Director
Texas Motor Vehicle Board
Effective date: January 26, 2005
Proposal publication date: October 15, 2004
For further information, please call: (512) 416-4899
Chapter 111.
GENERAL DISTINGUISHING NUMBERS