Part 1. TEXAS DEPARTMENT OF TRANSPORTATION
Subchapter F. ADVISORY COMMITTEES
The Texas Department of Transportation (department) adopts amendments to §1.82, Statutory Advisory Committee Operations and Procedures. The amendments to §1.82 are adopted with changes to the proposed text as published in the December 28, 2007, issue of the Texas Register (32 TexReg 9922).
EXPLANATION OF ADOPTED AMENDMENTS
The statutory advisory committees of the department are required by 43 TAC §1.82(c)(1) to post and hold their meetings in accordance with the open meetings law, Government Code, Chapter 551. That requirement is not imposed by the open meetings law or any other statute. This rule subjects advisory committees and their members to the enforcement provisions of the open meetings laws and to all of the technical requirements that the courts and the attorney general have determined are a part of the open meetings law. The open meetings law requirements impose a heavy burden on members of advisory committees, who are often members of the general public rather than elected or appointed government officials, whose only duties are to offer considered advice to the department, and who have no policy making powers or management or supervisory authority over any of the department's functions.
Section 1.82 prescribes rules governing the operations and procedures of department advisory committees that are created specifically by state law.
Amendments to §1.82(c), Meetings, provide that instead of subjecting the advisory committees to the requirements of the state's open meetings law, the advisory committees would be required to follow the specific requirements set out in the rule. The rule requires publication in the Texas Register of a 10-day notice of each meeting of an advisory committee, requires each meeting of an advisory committee to be open to the public, and requires an advisory committee to follow the agenda set for the meeting. The changes ensure that the activities of the advisory committees would remain open to the public but remove unnecessary requirements of the present rules.
Section 1.82(c)(3), Quorum, is revised by changing the number of votes required for an advisory committee to act from a majority vote of its membership to a majority vote of the members present at the meeting. Advisory committees may be large and contain representation from all areas of the state. Because of the time and expense required for members to gather for a meeting, it is sometimes difficult to arrange a meeting at which a quorum is present. Under current rules, a committee action would require a unanimous vote of those present if the minimum number for a quorum were present at the meeting. The revision is made to facilitate advisory committee actions while maintaining a requirement that a significant number of members agree for the committee to officially act.
COMMENTS
No comments on the proposed amendments were received.
STATUTORY AUTHORITY
The amendments are adopted 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, §§21.003, 55.009, 201.114, and 455.004 which authorize the commission to adopt rules to govern the operations of the respective advisory committees.
CROSS REFERENCE TO STATUTE
Government Code, Chapter 2110, and Transportation Code, §§21.003, 21.106 - 21.109, 55.006, 201.114, 201.6011, and 455.004.
§1.82.Statutory Advisory Committee Operations and Procedures.
(a) Applicability. This section applies to statutory advisory committees and governs the operation of statutory advisory committees unless it is superceded by a specific provision in §1.84 of this subchapter.
(b) Election of officers and terms of members.
(1) Unless otherwise specified with regard to a particular committee, each committee shall elect a chair and vice-chair by majority vote of the members of the committee. The chair and vice-chair shall each be elected for a term of not less than one year and not more than two years. Once elected, the chair and vice-chair may stand for reelection, without limit on the number of consecutive terms.
(2) Members shall serve on an advisory committee until new members are appointed.
(c) Meetings.
(1) Meeting requirements. The office designated for an advisory committee under subsection (f) of this section shall publish notice of a meeting of the advisory committee in the Texas Register at least 10 days before the date of the meeting. The notice must provide the date, time, place, and subject of the meeting. A meeting of an advisory committee must be open to the public. An advisory committee will follow the agenda set for each meeting under paragraph (2) of this subsection. Filing of notice of meetings with the Secretary of State shall be coordinated through the department's Office of General Counsel.
(2) Scheduling of meetings. Meeting dates, times, places, and agendas will be set by the office designated under subsection (f) of this section. Any committee member may suggest the need for a meeting or an agenda item, provided that the committee may only discuss items that are within the committee's and the department's jurisdiction. The office designated under subsection (f) of this section will provide notice of the time, date, place, and purpose of meetings to the members, by mail, email, telephone or any combination of the three, at least 10 calendar days in advance of each meeting. All meetings must take place in Texas and must be held in a location that is readily accessible to the general public.
(3) Quorum. A majority of the membership of an advisory committee, including the chairman, constitutes a quorum. The committee may act only by majority vote of the members present at the meeting.
(4) Removal. A committee member may be removed at any time without cause by the person or entity that appointed the member or by that person's or entity's successor.
(5) Parliamentary procedure. Parliamentary procedures for all committee meetings shall be in accordance with the latest edition of Robert's Rules of Order, except that the chair may vote on any action as any other member of the committee, and except to the extent that Robert's Rules of Order are inconsistent with any statute or this subchapter.
(6) Record. Minutes of all committee meetings shall be prepared and filed with the commission. The complete proceedings of all committee meetings must also be recorded by electronic means.
(7) Public information. All minutes, transcripts, and other records of the advisory committees are records of the commission and as such may be subject to disclosure under the provisions of Government Code, Chapter 552.
(d) Reimbursement. The department may, if authorized by law and the executive director, reimburse a member of a committee for reasonable and necessary travel expenses. Current rules and laws governing reimbursement of expenses for state employees shall govern reimbursement of expenses for advisory committee members.
(e) Conflict of interest. Advisory committee members are subject to the same laws and policies governing ethical standards of conduct as those for commission members and employees of the department.
(f) Administrative support. For each advisory committee, the executive director will designate an office of the department that will be responsible for providing any necessary administrative support essential to the functions of the committee.
(g) Advisory committee recommendations. In developing department policies, the commission will consider the recommendations submitted by advisory committees.
(h) Manner of reporting.
(1) The office designated under subsection (f) of this section shall, in writing, report to the commission an official action of a statutory advisory committee, including any advice and recommendations, prior to commission action on the issue. The chair of the advisory committee or the chair's designee will also be invited by the department to appear before the commission prior to commission action on a posted agenda item to present the committee's advice and recommendations.
(2) In the event a written report cannot be furnished to the commission prior to commission action, the report may be given orally, provided that a written report is furnished within 10 days of commission action.
(i) Duration. Except as otherwise specified in this subchapter, each statutory advisory committee is abolished December 31, 2009, unless the commission amends its rules to provide for a different date.
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 March 28, 2008.
TRD-200801651
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: April 17, 2008
Proposal publication date: December 28, 2007
For further information, please call: (512) 463-8683
Subchapter E. GENERAL DISTINGUISHING NUMBERS
The Texas Department of Transportation (department) adopts the repeal of §8.138, Temporary Cardboard Tags, §8.139, Metal Dealer License Plates and Temporary Cardboard Tags, §8.140, Established and Permanent Place of Business, and §8.146, Metal Converter's License Plates and Temporary Cardboard Tags, and new §8.138, Use of Metal Dealer License Plates, §8.139, Metal Dealer Plate Allocation, §8.140, Established and Permanent Place of Business, §8.146, Metal Converter's License Plates, §8.150, Authorization to Issue Temporary Tags, §8.151, Temporary Tags, General Use Requirements, and Prohibitions, §8.152, Obtaining Numbers for Issuance of Temporary Tags, §8.153, Specifications for All Temporary Tags, §8.154, Dealer Temporary Tags, §8.155, Buyer's Temporary Tags, §8.156, Buyer's Temporary Tag Receipt and Notice to Buyer, §8.157, Advance Numbers, Internet-down Buyer's Temporary Tags, §8.158, Advance Numbers, Emergency Buyer's Temporary Tags, §8.159, General Requirements and Allocation of Internet-down and Emergency Buyer's Tag Numbers, and §8.160, Converter's Temporary Tags, all concerning general distinguishing numbers. Sections 8.138, 8.140, 8.146, 8.151, 8.153, 8.154, 8.155, and 8.160 are adopted with changes to the proposed text as published in the January 18, 2008, issue of the Texas Register (33 TexReg 527). The repeal of §§8.138 - 8.140, and 8.146 and new §§8.139, 8.150, 8.152 and 8.156 - 8.159, are adopted without changes to the proposed text as published in the January 18, 2008, issue of the Texas Register (33 TexReg 527) and will not be republished.
EXPLANATION OF REPEALS AND ADOPTED NEW SECTIONS
Article 8 of Senate Bill 11 and Senate Bill 1786, 80th Legislature, Regular Session, 2007, require the department to create and maintain databases that allow for real time access to owner information on recently sold vehicles or vehicles operated under other temporary tags. The system must be capable of generating a vehicle-specific number for the issuance of dealer, buyer's, and converter temporary tags. The department must adopt rules and implement procedures for the generation of the vehicle-specific numbered temporary tags by dealers and converters, advance issuance of Internet-down and emergency tags to dealers for use when internet access is unavailable at the time of sale, display of temporary tags on vehicles by dealers, converters, and buyers, and the provision of information by dealers to buyers on the use of temporary tags, associated criminal penalties, actions required of buyers concerning temporary tags, and other information as determined by the department concerning the purchase and registration of vehicles. It is necessary to repeal existing §8.138, Temporary Cardboard Tags; §8.139, Metal Dealer License Plates and Temporary Cardboard Tags; §8.140, Established and Permanent Place of Business; and §8.146, Metal Converter's License Plates and Temporary Cardboard Tags and simultaneously adopt new sections for a data-based temporary tag issuance system as mandated by Senate Bill 11 and Senate Bill 1786.
Implementation of SB 11 and SB 1786 will require significant changes in the design, format, and method of issuing dealer and buyer's temporary tags. A dealer will provide the state with information about a vehicle and buyer, and the department will provide a specific number to be used on the temporary tag. The number on the temporary tag will greatly enhance law enforcement efforts to ascertain the true owners of vehicles prior to permanent registration.
New provisions set out additional premises requirements for dealers who file applications after May 1, 2008. A majority of the additional requirements are minimal. For example, dealership premises must have features such as electricity and a 100-square foot office. Existing dealers generally meet these standards. Other new provisions address safety issues, recognize new technology, and provide a small amount of consumer protection. The new section will raise industry standards and give legitimate dealers a better chance of competing with persons who would use a general distinguishing number license for convenience or to mask unlawful activities.
The department revised the rules by making technical and grammatical corrections to the adopted language. For example the department corrected references to the vehicle identification number so that all references are consistent throughout the rules. These technical revisions do not substantively change the rules. All substantive changes to the adopted text are explained in this preamble.
New §8.138, Use of Metal Dealer License Plates, and §8.139, Metal Dealer Plate Allocation, reorganizes and incorporates portions of existing §8.138 with only minor non-substantive changes. The changes clarify existing provisions and remove unnecessary language.
In response to comments, the department revised §8.138(a) as proposed to clarify that, although highly recommended, it is not a requirement for dealer employees to carry the metal dealer plate receipt in vehicles bearing metal dealer license plates. Proposed §8.138(c) is revised to make it clear that the prohibition against non-franchised dealers displaying metal plates on new motor vehicles only applies to the display of metal dealer plates.
Existing §8.139(a), relating to plate attachment to rear license plate holder and keeping of receipts in vehicles; §8.139(c), relating to prohibited usage of metal plates; §8.139(e), relating to usage on types of vehicles for which the dealer is licensed; and §8.139(i) - (j), relating to metal plate records and void plates, are reenacted in the new section. New §8.139 reenacts existing §8.138(n) relating to metal dealer's plate allocation.
A portion of existing §8.138(a) is not reenacted. Currently, the section requires dealers to remove and safeguard unvalidated multi-year license plates when placing a dealer plate on a vehicle and to put them back on the vehicle when the dealer plate is removed. Transportation Code, §502.451, enacted by House Bill 310, 80th Legislature, Regular Session, 2007, now requires dealers to remove license plates and registration insignia when they acquire a vehicle. Therefore, the provisions relating to multi-year license plates in existing §8.138(a) are no longer applicable.
Existing §8.140 contains premises and office standards for retail dealers and wholesale dealers. The current rule is confusing and difficult for retail dealers and wholesale dealers to easily understand the different standards that apply to their types of businesses. New §8.140 segregates the differing standards for retail and wholesale dealers and identifies those provisions that are applicable to both retail and wholesale dealers or applicable to only retail dealers. The new format is more comprehensible and contains additional descriptions to clarify some standards.
New §8.140(1), Business hours for retail dealers, incorporates existing requirements with only minor non-substantive changes. The changes delete unnecessary language making the section easier to read and understand. Specifically, existing §8.140(1)(A) provisions relating to posting and maintaining office hours for retail dealers and the existing §8.140(1)(B) provisions relating to having the telephone answered between 8:00 a.m. and 5:00 p.m. weekdays are contained in this paragraph. The restructuring allows a retail dealer to more easily identify the business hours and telephone requirements that apply specifically to a retail dealer.
New §8.140(2), Business hours for wholesale dealers, contains a new requirement that wholesale dealers must have the telephone answered by a bona fide employee, answering machine, or answering service during the hours of 8:00 a.m. and 5:00 p.m. on weekdays. In addition, wholesale dealers must now be at the licensed location for two consecutive hours at least two days a week instead of one day a week. The new requirements will help ensure that wholesale dealers are available at their place of business to meet with other dealers and department personnel as may be necessary. The remainder of the section incorporates existing §8.140(1)(G) provisions relating to posting and maintaining office hours for wholesale dealers and §8.140(1)(B) provisions relating to having the telephone answered between 8:00 a.m. and 5:00 p.m. weekdays. The restructuring allows a wholesale dealer to more easily identify the business hours and telephone requirements that apply specifically to a wholesale dealer.
New §8.140(3), Business sign requirements for retail dealers, incorporates existing §8.140(2) provisions relating to a retail dealer's signage. New language clarifies existing standards, by expressly stating that the sign must be permanently mounted and readable from the street. The sign must display the business name or assumed name under which the dealer conducts business as reflected on the dealer's license. It is acceptable to omit terms such "Inc.," "LLC," "LP" or similar identifiers of the business entity. In response to comments, the department acknowledges that franchised dealers may face particular difficulties in opening such a large business and has amended the 8.140(3) to clarify that, even though temporary signs or banners are not acceptable, franchised dealers may use temporary signs or banners for the purpose of obtaining a license until permanent factory-specific signage has been received and installed.
New §8.140(4), Business sign requirements for wholesale dealers, incorporates the existing §8.140(2) provisions relating to wholesale dealer's signage. New language sets out existing standards, by clarifying that temporary signs or banners are not acceptable, and that the sign must be permanently mounted. The sign must display the business name or assumed name under which the dealer conducts business as reflected on the dealer's license. It is acceptable to omit terms such "Inc.," "LLC," "LP" or similar identifiers of the business entity. Additional clarification is made that the sign may be on the main door to the dealer's office, the side of the building where the wholesale dealer is located, or other location on the business property. If the business sign is on or beside the main door to the dealer's office two inch high lettering is acceptable.
New office structure requirements in §8.140(5), Office structure for retail and wholesale dealers, apply to dealers that file applications for new license or a supplemental location after May 1, 2008. Dealers licensed before that date are not required to upgrade their premises to meet additional standards. The department has determined that new requirements should only apply to future new license applicants who could better incorporate any economic impact in making the initial decision of applying for a license.
New §8.140(5) incorporates existing §8.140(1)(B) - (C) provisions relating to definition of the building structure and the requirements for zoning compliance, use of portable buildings, and physical business address recognized by the U.S. Postal Service. Changes clarify that portable structures are still acceptable, provided that the structure is not a readily movable trailer or vehicle.
A new requirement is that internal office space must be not less than 100 square feet with a minimum seven foot ceiling. Other new provisions require electricity with adequate heating and lighting. It is not acceptable to locate a dealership office in a storeroom, closet, stock room, or other room that is not open to the public. New requirements prohibit offices located in a room within a residence, apartment house, motel, hotel, or rooming house. A vehicle purchase is one of the largest investments made by most consumers. The public is entitled to transact business in a professional setting. It is inappropriate to require the public to enter or approach a personal dwelling to conduct such a transaction. For health and safety reasons, the route to a dealership office may not pass through a food preparation area. This paragraph establishes the minimum structural standard necessary for a dealer's office to adequately and effectively serve the needs of the consumer.
The department revised §8.140(5) to require the dealer meet the requirements of paragraph (5) instead of subsection (5) for applications filed after May 1, 2008. The department intended that the dealer must meet all the requirements for the office structure as discussed in paragraph (5) and incorrectly referenced subsection.
Section 8.140(5)(G) states that licenses and dealer plates will not be mailed to out-of-state addresses. In response to comments, the section is slightly revised by including the word "metal" to make it clear that the dealer plates referred to are metal dealer plates.
New §8.140(6), Required office equipment for retail and wholesale dealers, incorporates existing §8.140(1)(B) provisions related to office furniture and telephones and further specifies that dealers must have a desk, two chairs, a file cabinet, Internet access, a printer, a fax machine, and a land based, business listed, working telephone. The new requirements for Internet access, printer, and fax machine recognize the changes in technology in the business environment. In addition, Senate Bill 1786 and article 8 of Senate Bill 11, 80th Legislature, Regular Session, 2007, require dealers to have Internet access to interact with the temporary tag database.
New §8.140(7), Number of retail dealers in one office, and §8.140(8), Number of wholesale dealers in one office, incorporate without change the existing §8.140(1)(B) and (F) provisions relating to the allowable number of retail and wholesale dealers in one office. New §8.140(9), Wholesale and retail dealers office sharing prohibition, incorporates the existing §8.140(1)(D) and (E) provisions relating to dealers conducting business in offices with other businesses. The restructuring allows retail and wholesale dealers to more easily identify the requirements related to the number of dealers in a single location that apply specifically to a retail or wholesale dealer and clearly states that the two entities cannot be located in the same structure if either of the entities were established after 1999. This language is in the current version of §8.140(1), relating to office requirements, however clarification was needed.
New §8.140(10), Dealer housed with other business, incorporates the existing §8.140(3) provisions relating to the display space requirements. Further clarifying information related to permanent barriers, signage, and the use of additional space when the designated display area is full is provided. The clarifications establish standards for barriers and signage at locations where other businesses are operated so that the dealer's operations are clearly distinguishable by consumers from the other businesses operated at that location. This subsection will prevent consumer confusion with the other businesses and establish the separate relationship between the motor vehicle transaction and those other businesses.
New §8.140(11), Display area requirements, requires outside lighting if a dealership is open after sundown. This paragraph also requires that if a dealer's premises include gasoline pumps or another business that sells gasoline, the display areas may not be part of the parking area for gasoline customers and may not interfere with access to gasoline pumps. Display space may not contain a fuel fill port or fire prevention access to fuel tanks. The creation of the lighting requirement and segregation from fuel storage areas provide additional safety for consumers. The lighting requirement also allows the consumer to make more informed choices when purchasing motor vehicles from dealers by allowing a better opportunity to examine the vehicle if shopping after dark.
New §8.140(12), Dealer with salvage dealer license, provides that dealers who also hold a salvage dealer's license must mark all salvage vehicles on the premises with signage informing potential buyers that the vehicles are salvage. This identification will enable the consumer to more easily identify a salvage vehicle from a non-salvage vehicle at the salvage dealer's facility. In response to comments, proposed paragraph (12) of §8.140 is revised to exempt licensed salvage pool operators from the sign requirement. Salvage pool operators do business with members of the pool who are aware that the vehicles are salvage and therefore, the need to mark the vehicles is unnecessary.
New §8.140(13), Lease requirements, incorporates existing §8.140(4) provisions relating to lease requirements and further provides that the lease must be in effect for the term of the current license. This provision helps assure operations will remain at the dealer's licensed location throughout the term of the license.
New §8.140(14), Dealer must display license, incorporates existing §8.140(5) provisions relating to the display of the dealer's license. This allows a consumer to see that the consumer is doing business with a licensed dealer.
New §8.146, Metal Converter's License Plates, reorganizes and incorporates portions of existing §8.146 with only minor non-substantive changes to improve the language of the rule. Existing §8.146(a), relating to plate attachment to rear license plate holder; §8.146(h), relating to usage on types of vehicles for which the converter is licensed; and existing §8.146(l) - (o), relating to metal plate records and void plates are reenacted in this new section.
The department revised the language in §8.146 to clarify that the converter must notify the department within three days of discovering that the metal converter plate is not accounted for. This discovery language was included in the proposed draft for §8.138(e) in reference to lost dealer metal plates but was inadvertently excluded from the requirements for converters. To maintain consistency throughout the rule the department added the language from §8.138(e) "of the date that the discovery is made" to §8.146(e).
New §8.150, Authorization to Issue Temporary Tags, states that licensed dealers and converters are authorized to issue temporary tags applicable to their businesses. Authorization to issue tags in connection with day-to-day business operations is assured until a license is cancelled, revoked, or suspended. However, because advance Internet-down and emergency numbers are more vulnerable to misuse, theft, and counterfeiting, a dealer's authorization to obtain these types of numbers in advance may be separately modified, suspended, or revoked after an opportunity for hearing.
New §8.151, Temporary Tags, General Use Requirements, and Prohibitions, requires all temporary tags to be displayed in the rear license plate display area of the vehicle, eliminating the option of rear window display. Transportation Code, §502.451, enacted by House Bill 310, 80th Legislature, Regular Session, 2007, now requires dealers to remove license plates and registration insignia when they acquire vehicles, making the license plate holders available for use. A temporary tag displayed in a tinted rear window is often difficult to see. It is vital that law enforcement officers be able to view the tag easily now that they can access the database and obtain identifying information about the owner of a vehicle in real time. The remaining portions of §8.150 incorporate existing requirements with only minor non-substantive changes to make the section easier to read and understand.
New §8.152, Obtaining Numbers for Issuance of Temporary Tags, requires dealers and converters to have Internet access to obtain a specific number for each tag from the temporary tag databases maintained by the department. Dealers and converters are required to enter information into the databases and obtain a number before a temporary tag may be issued and displayed on a vehicle. The only permissible exceptions are contained in §8.155 and §8.156, relating to obtaining advance numbers in the event that Internet connectivity is down or power and communications are disrupted for more than two days. Senate Bill 11 and Senate Bill 1786 require that licensees connect to the databases through the Internet. It is necessary that all dealers and converters have an Internet connection to do so.
New §8.153, Specifications for All Temporary Tags, describes the specifications and acceptable methods for issuance of temporary tags using the specific number obtained from the state databases.
The department will no longer require temporary buyer's or converter tags to be red, blue, or orange. Information printed or completed on all tags must be in black ink. This will facilitate issuance of a tag using a computer and printer and will reduce costs to dealers and converters who previously were required to have temporary tags printed in color.
In response to comments, the department has revised proposed §8.153(b) and (c). A number of comments suggested that temporary tag material must be cardboard and that no other substance can be contemplated under the statute. The department believes that the legislative intent of prescribing "cardboard" tags was to use a product durable enough for the necessary life of the temporary tag. The use of cardboard temporary tags was initiated in 1963. It is likely that other materials were not available at a cost-effective price at that time. As materials and printing technologies evolve, dealers are discovering low cost alternative solutions that satisfy the durability requirement established by statute. At this time, the legislature has not recognized any material other than cardboard to be of sufficient durability, nor has it allowed the department to independently set standards that might recognize modern technological solutions. The department has concluded that all temporary tags must be cardboard or have a cardboard backing to comply with the statute and be sealed in a 2 mil clear poly bag to insure durability.
The statute does not define "cardboard". "Cardboard" is a generic non-specific term for a heavy paper based product. There are many products commonly referred to as cardboard, including paperboard used in building construction, corrugated fiberboard used in shipping, and heavy paper stock generally referred to as cardstock, cover stock, or poster board. A definition used by the paper and publishing industry provides that cardboard is "a general term which usually refers to a sheet more than 0.006" in thickness."
Under the authority of Transportation Code, §§503.062(d), 503.0625(e) and 503.063(d), which authorize the department to determine the specifications and form of temporary tags, the department's current rules already limit the type of cardboard for temporary tags to be a six-ply product. The paper industry often refers to this product as "chipboard". In researching the issue, the department ascertained that the paper industry now more commonly describes products by weight rather than the number of layers. The department has revised the requirement to reflect industry standards by setting the minimal acceptable weight of the cardboard material to be 65-pound cover stock. The thickness of 65-pound cover stock falls within the industry standard.
The department has determined that "cover stock", also known as "card stock", is an acceptable cardboard material. It is a common term understood by office supply stores and the general public to mean a stiff heavyweight paper product used when durability is a concern. It is readily available from office supply stores, Internet vendors, and major retail stores that offer office supplies. Dealers in remote areas of Texas will be able to obtain it as easily as dealers in large metropolitan areas.
The department has also determined that a cardboard backing for a temporary tag is sufficient to comply with the requirements of the statute. To meet statutory requirements, §8.138(a) currently requires tags to "be printed on not less than 6-ply cardboard." Even so, the department has not taken enforcement action against dealers who print information on labels and affix them to cardboard, recognizing that materials and technology have evolved since 1975. To require that tags only be cardboard would deprive dealers of alternatives that have been in use for some time, such as using cardboard as a backing for a label. The purpose of §8.153(b)(2) and (3), as revised, is to legitimize dealers' current practices of using cardboard as a backing for the material on which the actual tag information is printed, by printing the information on a label or paper and affixing it to or backing it with cardboard.
Another issue drawing comment was whether the various temporary tags would be durable enough to protect the lettering on the tag from the elements and more intense exposure, such as car washes. The department's Materials and Test Section conducted tests to compare the performance of ink jet and laser printer tag samples, and to compare the performance of tags in poly bags with and without cardboard backing, as well as a plastic tag. Samples were subjected to accelerated weathering, wet rub, detergent spray, solvent spray, and car wash tests. There did not seem to be a significant difference between the ink jet printer and laser printer tag samples. Unprotected ink jet printer paper tags may be a little more sensitive to water and some detergents. Unprotected laser printer tags may be more sensitive to UV degradation, but it should not be significant for their short period of use. All temporary tag samples showed a fairly good potential for performing satisfactorily under normal operating conditions. Temporary tags in bags with open ends may perform satisfactorily but moisture entrapment may be a problem and may affect visibility in some cases.
Department personnel also conducted real-life tests by placing various tag samples on their personal vehicles. While some performed better than others, all samples appeared to be durable enough for the life of the tag. However, to ensure the greatest durability of the tags the department has determined that, dealer or converter must place temporary tags in plastic bags that must be sealed to protect the tag from moisture. The rule is revised to reflect this change.
Revised §8.153(b) describes five acceptable methods for issuing temporary tags. The database will provide the specific number and other information required to be displayed on the tag via an image of a sample tag, which will demonstrate how a properly completed tag should look.
The current system of manually placing information on pre-printed cardboard stock using a black marking pen or other means remains an option. The department will also allow a licensee the option of printing the image of the sample tag onto cardboard. If a dealer or converter chooses to manually complete and issue preprinted cardboard temporary tags, those tags must comply with the standards for format and display as indicated in the applicable appendices A-1 through C-1 of §8.153(c). In addition, the department will allow a licensee the option of printing the image of the sample tag onto plain paper or a label and securing it to a piece of cardboard. Another option is that the licensee may print a plain paper image of the sample tag and seal it, along with a cardboard backing, in a clear plastic bag to protect it from the elements. All tags, regardless of which option, must be sealed in a clear poly bag.
It is reasonable to assume that some dealers may wish to use this image rather than copy the information onto a cardboard tag. Copying the required information onto the tag to make it useful to law enforcement will become tedious for many large-volume dealers who make numerous sales. Having to buy cardboard tags pre-printed with blank boxes to fill in does not decrease the dealer's cost of buying a printed tag and increases labor costs. Most importantly for law enforcement purposes, the likelihood of errors in the transference of information and numbers from the printed receipt to the cardboard tag is apt to occur too often. Therefore, it is in the best interest of law enforcement, dealers, and the department to facilitate the use of the provided sample image in a manner that is both efficient and acceptable to all concerned. It is good public policy to acknowledge the practical business necessity by allowing the sample image to suffice for the temporary tag. To do otherwise would increase costs to consumers.
Dealers and converters must begin using the new tags on the date that the database system is made generally available for use by the department. The department will provide the dealer access to the database for review at least 60 days before the requirement to use the system for the issuance of temporary tags. The department wants to give all dealers an opportunity to study the new system if they choose, however, it is necessary to have a specific statewide implementation date. Having a specific date that all dealers must be in compliance with the new system will limit the time that dual systems for issuing temporary tags exist. This will also benefit law enforcement and consumers by allowing them to become familiar with the appearance of the new tags. The department will notify the dealers through the Texas Register , department's website, and dealer associations of the dates that the system is available for review and the date that all dealers must begin to use the new system.
New §8.154, Dealer Temporary Tags, describes permissible usage of dealer temporary tags in demonstrating vehicles to prospective buyers, providing loaned vehicles to charitable organizations, operating vehicles in parades, road testing, and conveying untitled vehicles to a place of service or repair, to another place of business, or from a delivery point to a dealer's place of business. Holders of wholesale motor vehicle auction general distinguishing numbers may use temporary tags in transporting vehicles to or from a licensed auction location by that licensee's employees. Prohibited usage is established for laden commercial vehicles, dealer service or work vehicles, and personal use vehicles. These permissive and prohibited usages incorporate provisions of existing §8.138(b)(1), Appendix A-2, §8.139(c), and §8.139(l) without change.
In response to comments, the department has added §8.154(f)(3) to make it clear that dealers may place dealer tags on towing and towed vehicles if both vehicles are being conveyed to or from a wholesale auction.
Existing §8.139(e) is incorporated without change by providing that dealers may use temporary tags only for the type of vehicles for which the dealer is licensed. Existing §8.139(g) provisions that temporary dealer tags are to be removed from a vehicle when an unregistered vehicle is sold to another dealer, that temporary buyer's tags may be issued, and that consigned vehicles are to display the temporary tag of the dealer to which it is consigned are also incorporated into the new rule.
New requirements are that temporary dealer tags are to have an expiration date not to exceed 60 days from the date of issuance. The temporary tag may be issued to a specific vehicle or to a specific agent of a dealer. A tag for a specific vehicle must display the vehicle-specific number from the state database, the year and make of the vehicle, the vehicle identification number, and the month, day, and year of expiration. Tags issued to dealer employees or agents must display the agent-specific number from the database and the month, day, and year of expiration. In response to comments, the department has revised proposed §8.154(k) by eliminating the requirement that agent tags bear the name of the salesperson or dealer agent, to protect the privacy of the dealer agents.
Temporary dealer tags are primarily used to demonstrate vehicles to prospective buyers or convey vehicles to and from auctions and repair shops. Dealers generally sell a vehicle within 60 days, and a longer time period is not necessary. In addition, a dealer is able to reissue the dealer temporary tag at the end of the 60-day period should a longer period be needed.
New §8.155, Buyer's Temporary Tags, sets out requirements for a temporary buyer's tag. Certain existing requirements are unchanged. A buyer's temporary tag is not to be displayed on any street-operated vehicle unless that vehicle is actually sold. Temporary buyer's tags are valid for a period not to exceed 21 calendar days from the date the vehicle is sold. Supplemental buyer's tags are authorized when a dealer is unable to obtain documents in possession of a lienholder that are necessary to transfer title. Information required to be placed on buyer's tags is unchanged, except for the addition of the vehicle-specific number obtained from the state database.
Amendments to Transportation Code, §503.063(a) now require dealers to place a temporary buyer's tag on any vehicle sold. New §8.155(b) clarifies that dealers are required to do so and sets out an exception for wholesale transactions if the purchasing dealer places its own dealer tag on the vehicle. The exception recognizes standard business practices in the industry. Buyer's tags serve as temporary authorization to operate a vehicle on the public streets until a dealer titles and registers the vehicle in the name of the retail buyer. Vehicles in dealer-to-dealer transactions are not titled or registered in the name of the purchasing dealer.
Amendments to Transportation Code, §503.063(g) now state that a supplemental buyer's tag may be issued after 20 working days after the date of the issuance of the original buyer's tag, which under Transportation Code, §503.063(b) is valid for 21 calendar days. The result is that retail customers would be without valid tags for approximately one week. To resolve the conflict, the department will require dealers to renew the vehicle-specific number previously issued for the buyer's tag, on a supplemental buyer's tag, within 20 working days of the date of sale.
New §8.156, Buyer's Temporary Tag Receipt and Notice to Buyer, implements new Transportation Code, §503.0632, requiring dealers to provide notice to buyers of the applicable law and possible penalties relating to buyer's temporary tags. Dealers must provide to each buyer a temporary tag receipt for each tag containing specific sales and tag related information and are required to instruct the buyers to keep a copy of the receipt in the vehicle. The buyer must sign a copy of the receipt and the dealer must keep a copy of the signed receipt in the dealer's records. The receipt will include an acknowledgment that the buyer received all the required buyer's notices.
New §8.157, Advance Numbers, Internet-Down Buyer's Temporary Tags, implements new Transportation Code, §503.0631(d). Dealers are entitled to obtain an advance supply of numbers from the database to use if the dealer cannot access the Internet at the time of a sale. Dealers are further required to enter required information into the database not later than the next business day after the sale.
New §8.158, Advance Numbers, Emergency Buyer's Temporary Tags, implements new Transportation Code, §503.063(f), which requires the department to ensure that a dealer may generate a one-week supply of advance numbers to use if Internet access is disrupted in the event of an emergency. The department defines an emergency as a natural disaster that affects power and communications to a dealership for more than two days. Dealers must enter the required information into the database within 24 hours after the time that the power or Internet connectivity is restored.
New §8.159, General Requirements and Allocation of Internet-down and Emergency Buyer's Tag Numbers, describes general requirements for safekeeping and expiration of advance numbers and how many advance numbers a dealer may obtain for each type of number. Because advance numbers are not associated with a specific vehicle or buyer, they are more vulnerable to misuse and theft. Therefore, advance numbers are to be kept in a secure, locked place and dealers must report any loss, theft, or destruction of the numbers within 24 hours of that event.
Advance numbers will be allocated to dealers based on a percentage of their annual sales, which will be determined by the dealer's annual Vehicle Inventory Tax filings.
Advance numbers will expire 12 months after the date of issue. To ensure that dealers have an adequate supply of advance numbers, dealers may obtain additional advance numbers as they use them or the numbers expire.
If Internet access is unavailable, dealers are required to enter the information into the database not later than the next business day. The amount of advance Internet-down numbers would be one days' worth of a dealer's annual sales or approximately .002 percent (.002%). This figure is not practical for application to such a diverse dealer body as that in Texas. The department has determined that a reasonable amount of advance Internet-down numbers should be one percent (1%) of a dealer's total annual sales, with a minimum of one advance number. Since new license applicants have no sales history upon which to calculate an initial allotment of advance numbers, the department has set initial allotments and provided a means for a dealer to request more advance numbers based on monthly sales history. Dealers who purchase an existing dealership or relocate may rely on the sales history of the previous license to obtain advance numbers.
If a dealer's power or Internet connectivity is disrupted because of an emergency, the statute requires that dealers have a week's worth of emergency advance numbers. The department has determined that a reasonable amount of emergency advance numbers is 1/52 of a dealer's total annual sales, with a minimum of one advance number. To calculate an initial allotment of advance numbers, the department has set initial allotments and provided a means for a dealer to request more advance numbers based on monthly sales history. Dealers who purchase an existing dealership or relocate may rely on the sales history of the previous license to obtain advance numbers.
New §8.160, Converter's Temporary Tags, describes permissible usage of converter's temporary tags in demonstrating vehicles to prospective buyers, road testing, and conveying vehicles to a place of service or repair, to another place of business, or from a delivery point to a converter's place of business. These provisions incorporate sections of existing §8.146(c) - (f), and (h) - (i) without change. New requirements are that temporary converter's tags are to have an expiration date not to exceed 60 days from date of issuance. The temporary tag may be issued to a specific vehicle or to a specific agent of the converter. A tag for a specific vehicle must display the vehicle-specific number from the state database, the year and make of the vehicle, the vehicle identification number, and the month, day, and year of expiration. Tags issued to converter employees or agents must display the agent-specific number from the database, and the month, day, and year of expiration. In response to comments, the department revised proposed §8.160(j) by eliminating the requirement that agent tags bear the name of the agent, to protect the privacy of converter agents.
Temporary converter tags are primarily used to demonstrate vehicles to prospective buyers or convey vehicles to and from auctions and repair shops. If a converter needs a longer time period, the converter will be able to reissue the temporary tag at the end of 60 days.
COMMENTS
The department conducted one statewide hearing to receive comments concerning the proposed amendments. Various oral and written comments were received from 27 individuals representing licensed franchise and independent dealers, dealer organizations, law enforcement, and concerned citizens. The department received comments from the Texas Automobile Dealers Association, Texas Independent Automobile Dealers Association, Houston Independent Automobile Dealer Association, Texas Recreational Vehicle Association, Texas Municipal Police Association, Texas Police Association, the Combined Law Enforcement Association of Texas, Texas Department of Public Safety, OpSec Security, Inc., GCS Systems, Inc., US TempTag, L.L.C., InstaTag, AA Insurance Auto Auctions, James Brothers Auto Sales, Texan Auto Sales, Vandergriff Auto Group, John Freeman, Mid-Cities Classic's, Inc., Ron Briggs Motors, Sterling Auto Sales, Cowboy Trucks, and GMC Leasing. The department also received a written comment from the Honorable Jeff Wentworth, State Senator.
Comment: The Texas Automobile Dealers Association (TADA) commented regarding proposed §8.138, Use of Metal Dealer License Plate. TADA suggests that prior language "Although not a requirement" be inserted in §8.138(a) so that it is clear that the requirement to carry a copy of the receipt for the metal dealer's plate in the vehicle is permissive rather than mandatory.
Response: The department concurs. Maintaining the receipt copy in the vehicle allows law enforcement to verify that the use of the metal dealer plate by the vehicle operator is legitimate and gives dealer employees a simple means to provide verification. However, the department has no objection to reinserting the prior language into the rule.
Comment: TADA commented regarding proposed §8.138, Use of Metal Dealer License Plate. TADA suggests that the word "dealer" be inserted in a sentence prohibiting non-franchised dealers from displaying metal plates on new motor vehicles in subsection (c).
Response: The department concurs. Even though, §8.138 is captioned "Use of Metal Dealer License Plate," and the sentence before the one in question explicitly references metal dealer plates, the department has no objection to adding the word "dealer" to the sentence in question if it will promote a clearer understanding of the section.
Comment: TADA and one independent dealer commented regarding proposed §8.140, Established and Permanent Place of Business. In reference to paragraph (3), TADA suggested that franchised dealers should be allowed to use temporary signs or banners due to the possible necessity that a franchise agreement may require a franchise dealer to order a factory-specific sign from the manufacturer or distributor that is not delivered in a timely manner.
Response: The department concurs. Current licensing policy is to accept a purchase order for a sign for purposes of license processing and approval; however, the license will not be issued until the sign is in place. This policy applies to all dealers who hold a General Distinguishing Number. Nevertheless, the department understands that franchised dealers may face particular difficulties in opening such a large business and is willing to allow temporary signs and banners until permanent factory-specific signs can be erected.
Comment: TADA commented regarding proposed §8.140, Established and Permanent Place of Business. In reference to §8.140(5)(G), TADA suggests that the restriction relating to a prohibition on licensing and dealer plates be clarified as to "metal" dealer plates and mailing of the plates be prohibited to "post office" addresses.
Response: As for the use of the word "metal" in reference to dealer plates, the only type of dealer plates the department mails to dealers are metal plates, but the department has no objection to inserting the word "metal" into the section for clarity and §8.140(5)(G) is changed accordingly.
The department does not concur with the suggestion of the prohibition of the use of post office addresses for mailing. The current prohibition is a restriction on the delivery of licenses and dealer plates to out-of-state addresses. The suggested language would literally prohibit the mailing of licenses and metal dealer plates to any address recognized by the U.S. Post Office. The department assumes that the intent of the comment was a prohibition on delivery to post office boxes. The department is not aware that delivery to a post office box poses any type of concern since licensees are required to maintain physical locations as licensed locations and may provide an alternative mailing address for official department mailings. No change is made as a result of this comment.
Comment: A representative of AA Insurance Auto Auctions commented that §8.140(12), which requires salvage dealer licensees to clearly mark with a sign that a vehicle is a salvage vehicle, should be limited to vehicles offered for sale to "consumers." In a later communication, that auction operator clarified that it wanted to exclude "salvage pool operators" from the sign requirement.
Response: The department agrees. "Consumer" is a generic word that can apply to both retail and wholesale purchasers. The addition of the word "consumer" would not add clarity to the proposed language. However, since salvage pool operators engage in business with members of the pool, the department has added an exemption for licensed salvage pool operators to §8.140(12).
Comment: The Texas Police Association, the Texas Municipal Police Association and a major with the Texas Highway Patrol support §8.151(a), requiring placement of the temporary tags in the license plate holder, and oppose any exception for dealer's temporary tags from that requirement as defeating the purpose of the legislation to enhance law enforcement's ability to detect fraudulent use of temporary tags because it restricts a law enforcement officer's ability to clearly observe the tag. Heavily tinted windows obscure temporary tags. A dealer also commented that placing the temporary tags in license plate holders will aid law enforcement because the temporary tags will be more easily seen when they are not obscured by window tinting or the angle of the rear window.
Response: The department concurs. A temporary tag displayed in a tinted rear window is difficult to see, because of tinting or the angle of the rear window. The main purpose of the new system of temporary tags is to allow easier identification by law enforcement of counterfeit or stolen tags and to identify the owner of the vehicle. Temporary tags with unique identifying numbers serve no purpose if law enforcement cannot view them. This purpose is better served by displaying all temporary tags in the license plate holder. It is vital that law enforcement officers be able to view the tag easily now that they can access the database and obtain identifying information about the owner of a vehicle in real time.
Comment: TADA commented regarding proposed §8.151, Temporary Tags, General Use Requirements, and Prohibitions. It suggested that a dealer's temporary tag have the option of being placed in the rear window rather than just in the license plate holder. The Texas Independent Automobile Dealers Association (TIADA) agreed that window placement would prevent theft and vandalism. Five dealers opposed the placement of tags in license plate holders due to weather making the temporary tags illegible, the tags flying off the vehicles, and the temporary tags being stolen. Another dealer commented that he wanted the option to print out tags and place them on the vehicle wherever he wanted.
Response: The department does not concur. Additionally, there are many concerns expressed by law enforcement in reference to placement of temporary tags in vehicle windows. There is also a likelihood of confusion at the dealership between buyer's tags and dealer tags when placing a tag on the vehicle. One of the main purposes for the new system of temporary tags is to allow easier identification by law enforcement of counterfeit or stolen tags. This purpose is better served by locating all temporary tags in the rear license plate display area.
Temporary tags properly fastened in the rear license display area do not fly off moving vehicles or flap when the vehicle is in motion. Temporary tags in license plate holders share similar characteristics to metal license plates in rear license plate holders. The department has not received complaints of metal license plates flying off moving vehicles. Since temporary tags are secured in a similar manner to a metal license plate in the rear license display area, a thief would require the same amount of effort to steal a temporary tag as a metal license plate. In recognition that not all vehicles have license plate holders, the section is modified slightly to describe it as the rear license display area.
Temporary tags are intended to have a limited life so the effects of weather on the tag are also limited. The department conducted tests of the proposed temporary tag types. One test subjected the proposed versions of the temporary tags to real life driving conditions during a projected life of twenty working days. Another test simulated weather conditions and exposure to various solvents as well as simulated car washes. Durability of the proposed tag types as well as ink jet printing versus laser printing was examined. The tests confirmed that the proposed tag types and printing methods and the requirement that the tags be placed in plastic bags, made the tag suitable for the expected period of usage.
Comment: A representative of James Brothers Auto Sales commented that there are many quick alternatives for placing and removing dealer temporary tags in license plate holders. He identified suction cups, magnets, and easily placed temporary fasteners. He also stated that he believed that dealers oppose placing temporary tags in license plate holders because most dealers place plaques in the license plate holders that act as advertising for the dealers.
Response: The department concurs. There are a variety of commercially available products that are alternatives for placing and removing temporary dealer tags in license plate holders that are functionally as convenient as taping and removing temporary tags from back windows in situations such as demonstration drives where temporary dealer tags are frequently changed from vehicle to vehicle. The department does not speculate on the reasons for a commenter's position.
Comment: Concerning the design of tags as set out in §8.153, two representatives from OpSec Security, Inc. urged requiring use of holograms on all temporary tags to make them more secure. They pointed out that the American Association of Motor Vehicle Administrators (AAMVA) endorses the use of holograms and that holograms are in use in other jurisdictions. The additional layer of security provided by holograms will make it more difficult to counterfeit tags, combat fraud, and help law enforcement easily identify counterfeit tags. A corporate representative for a provider of a cardboard temporary tag system commented that use of a hologram on the temporary tags would make the tags more secure at this time.
Response: The department does not concur. Although the department believes that additional security features might be considered for future tag standards these new section do not require holograms on the temporary tags. The hologram was not included in the initial rule proposal and the department believes that additional study is necessary. The department also believes that requiring the hologram at this stage of the rule promulgation process eliminates the opportunity to have it fully reviewed by the regulated industry.
Comment: A representative of James Brothers Auto Sales stated he opposes holograms because of the cost involved and that holograms can be counterfeited.
Response: The use of holograms is not required under these amendments. The department will continue to study ways to provide additional security features to the temporary tag and may consider additional requirements in the future.
Comment: A representative of Texan Auto Sales, the Texas Municipal Police Association (TMPA), and the Houston Independent Dealers Association commented that counterfeiting temporary tags will always be a problem.
Response: The department concurs. The proposed rules should reduce the current level of temporary tag counterfeiting by establishing a system for law enforcement to verify the legitimacy of the temporary tag usage through vehicle-specific or user-specific tag numbers in a real time database.
Comment: A representative of James Brothers Auto Sales stated that he has concerns about the option to handwrite the tags because of bad handwriting.
Response: The department is aware that bad handwriting will occur on handwritten temporary tags, but the option is necessary for those licensees who do not maintain the necessary computer equipment or working knowledge and because of printer malfunctions.
Comment: Two corporate representatives of GSC Systems, Inc. commented that by allowing dealers to use the sample image generated by the department when issuing temporary tags, the department is issuing temporary tags in violation of Transportation Code, §503.063(e).
Response: The department does not concur. Under Transportation Code, §503.0626 and §503.0631, the dealer/converter inputs information and receives back an electronic image containing the information the dealer or converter submitted and a vehicle-specific number as authorized by those statutes. Section 8.153 authorizes dealers and converters to use the electronic image when the dealer or converter creates and issues the temporary tag. The department is not issuing a temporary tag but merely granting permission for dealers and converters to use that image in the process of issuing a temporary tag. The department supports this as a means to allow the dealers and converters to use the electronic information input into the system. This eliminates the need to duplicate the same information when the temporary tag is created and issued by the dealer or converter.
Comment: Two corporate representatives of GSC Systems, Inc. state that the tag images the department provides for dealers to verify the database information be stamped with the word "Sample" so that the department generated images cannot be used by dealers as a real tag.
Response: The department does not concur. The department does not issue tags. As noted previously, the dealer or converter creates and issues temporary tags based upon vehicle and buyer information in the licensee's possession and the unique number generated in response to the licensee's input. The summary of this combination of information is displayed in a format so that licensees can easily determine where to place required information on a temporary tag. The department has no objection to dealers and converters printing the image and using it in their process of creating the temporary tag. Requiring dealers and converters to duplicate the information they have input elsewhere when creating tags only imposes an additional cost without a corresponding benefit to the licensee, consumer, law enforcement, or the State of Texas.
Comment: Two corporate representatives GSC Systems, Inc. state that tags should be color coded and printed using PMS colors that only printing presses can produce.
Response: The department does not concur. At this time, due to the issuance of a unique number for each temporary tag, color coding temporary tags does not serve any useful purpose and would only impose an additional cost to the dealer or converter when they create and issue temporary tags without any corresponding benefit to the consumer, licensee, law enforcement, or the State of Texas.
Comment: TADA commented regarding the use of "cardboard" tags. It stated that there is nothing magical about the "cardboard" tag language contained in various statutory provisions relating to temporary tags. The products now available far exceed the usefulness of cardboard. It is most likely that the legislature desired to have a product used that would be durable for the amount of time of expected use. In 1975, that product was cardboard but there are now plastic and plastic-like products that may be more durable and less expensive. TADA supports expanding the availability of the types of products to include any product that will withstand the elements for 20 days.
A corporate representative of InsteTag commented that the use of a polyester product as an alternative should be considered, and that product has proven effective in the temporary tag system instituted by the State of Florida.
A representative of Vandergriff Auto Group commented that the use of cardboard only for temporary tags limits the ability of dealers to obtain less expensive alternatives and to drive down costs.
Response: The department agrees that cardboard is not the only available product for temporary tags, however the legislature has not recognized any other material as acceptable. The department has determined that all temporary tags must be cardboard or have a cardboard backing to comply with the statute. As it drafted the proposed rules, the department considered the costs to dealers and converters in implementation and allowed the dealers and converters options, when possible, where the dealer and converter could make choices based on costs or other needs.
Comment: The president of US TempTag, LLC. commented that he supported the authorization for the use of a label stock, laser printed and adhered to a cardboard stock.
Response: These new sections do authorize the use of a label stock, laser printed and adhered to a cardboard stock as an acceptable method under §8.153 to allow dealers and converters the flexibility to choose the best method for their business needs. The printed tag must be sealed in a 2 mil clear poly bag to ensure durability.
Comment: John Freeman commented that as a dealer all he wanted was the option to print out tags.
Response: The department's proposal allows dealers/converters to print out tags to allow them the flexibility to choose the best method for their business needs. The printed tag must be sealed in a 2 mil clear poly bag to ensure durability.
Comment: Two corporate representatives of GSC Systems, Inc. commented that temporary tags need to be durable enough to last until replaced by a metal plate.
Response: The department concurs. Use of a buyer's temporary tag is limited to 20 working days. Use of a dealer's temporary tag is limited to 60 calendar days. Expired temporary tags should not be used on any vehicle, so there is no reason for any temporary tag to have a useful life beyond 60 days. The department does not want to encourage the use of expired temporary tags by requiring the use of a product with a useful life well beyond the projected need. The department's proposed rules allow multiple options for the creation of temporary tags. All these options meet at least the minimal useful life standard for buyer's temporary tags, but some options may be a better choice for dealer's temporary tags, particularly if those tags are subject to frequent placement and removal during their projected life. In such a case, the proposed new sections allow a dealer the choice of the most cost efficient, viable option for that dealer's projected use or a more costly alternative if the dealer so chooses. The only requirement for all tag options is that the tag be sealed in a 2 mil clear poly bag.
Comment: The Combined Law Enforcement Officers of Texas (CLEAT) and Senator Wentworth commented that use of "copy paper in a plastic bag" does not meet the legislative requirement for the use of cardboard.
Response: The department has determined that a cardboard backing for a temporary tag is required to comply with the statute, and has revised proposed §8.153 to reflect the additional requirement of a cardboard backing.
Comment: One law enforcement officer commented that placing a plastic bag over a paper tag violated the prohibition against tinted coverings being placed over license plates.
Response: The department does not concur. Transportation Code, §502.409(a)(7) prohibits obscuring license plates. It does not address temporary tags. A clear plastic bag is not a tinted covering and, properly installed in a license plate holder, would not obscure the lettering.
Comment: CLEAT and two corporate representatives of GSC Systems, Inc. state that the tag on copy paper inside a clear plastic bag will not be visible due to light reflecting off the plastic or that the bag will serve as a conduit for moisture that will eventually destroy the tag. The president of GSC Systems, Inc. commented that a system that uses an inkjet printer to print tags which are placed in a plastic bag may produce condensation problems that lead to the fading and bleeding of the tag lettering.
Response: The department does not concur. Arizona and Montana require paper temporary tags that must be placed in plastic sleeves. Both states have provided the department with information stating that the plastic sleeves are durable and withstand freezing Montana winters and Arizona rains. Arizona law enforcement actually participated in testing the plastic sleeve to ensure that visibility was not impaired. Both states advised that law enforcement approve of the plastic sleeve and that sleeves have been in use without major problems or objections from law enforcement.
The extent of condensation problems and the associated effect on inkjet print depends on the type of ink used and flaws in the plastic bags or installation. The department has conducted field and laboratory tests of the proposed temporary tag types and did not experience any significant problems associated with condensation. However, to help ensure that moisture will not degrade a temporary tag in a plastic bag, the department has revised §8.153 to require that plastic bags must be sealed. The department maintains confidence that the proposed tag types are more than adequate for the twenty-one day life of the temporary tag.
There is nothing unique about cardboard that would make it less susceptible to the manufacture of counterfeit temporary tags than copy paper. One commenter at the public hearing brought with him a counterfeit cardboard tag that had been bought at a flea market the day before the public hearing. Under the proposed rules, each temporary tag will be given a unique number which is specifically tied to a specific vehicle or a specific person. That uniqueness will make it easier for law enforcement to identify that a temporary tag does not belong to a particular vehicle or person.
Comment: Two corporate representatives of GSC Systems, Inc. provided a document entitled "Visibility Test of Temporary Tag Media Options Being Proposed," which allegedly subjected the four proposed versions of the temporary tags to various lighting and weather conditions with a result that the two temporary tag versions that the provider supplies passed their testing and the two temporary tag versions not supplied by that provider failed.
Response: The department does not concur with the conclusions reached or the methods used in arriving at the conclusions in "Visibility Test of Temporary Tag Media Options Being Proposed." The parameters and the conditions of the testing are not fully discussed, so replication of the testing or additional analysis cannot be made. However, it is clear from the photocopied photographs that the two temporary tag versions that failed this testing were not properly secured in the license plate holder.
The department has conducted tests of the proposed temporary tag types. One test subjected the proposed versions of the temporary tags to real life driving conditions during a projected life of twenty working days. Another test simulated weather conditions and exposure to various solvents as well as simulated car washes. Durability of the proposed tag types as well as ink jet printing versus laser printing was examined. The tests confirmed that all the proposed tag types and printing methods are suitable for the expected period of usage. However, to ensure the greatest durability, all tags must be sealed in a 2 mil clear poly bag.
Comment: TIADA commented that it supported the proposal, including the provisions relating to the issuance of temporary tags, and that the provisions relating to dealer offices place no additional burdens on legitimate dealers.
One law enforcement officer commented that he supports the overall proposal and that the use of a protective baggie on paper plates has proven effective and sufficient to protect the tag for its expected life. A representative of Vandergriff Auto Group and the Texas Recreational Vehicle Association commented that each supports the rules as proposed.
Response: The department concurs with this general support and that support relating to the issuance of temporary tags, the provisions relating to dealer offices, and the use of protective baggies. The department designed these rules to best meet the needs of licensees and consumers with consideration for relative costs and the ability to make business choices. The department is aware that the plastic protective bag containing a paper tag has been used successfully in other states.
Comment: TIADA commented that due to some smaller dealers who use one vehicle to tow another vehicle from an auction that language should be added to proposed §8.154(f) that would define a vehicle with a temporary dealer's tag towing another vehicle with the same dealer's temporary tag to or from an auction from or to the dealer's place of business as not being a "laden commercial vehicle."
Response: The department agrees. Under Transportation Code, §502.001(2) a commercial vehicle is one designed or used primarily to transport property. Unless a dealer were actually using a commercial vehicle the prohibition of proposed §8.154 would not apply. However, the language is added to §8.154(f) to clarify the intent of the section.
Comment: Representatives from Mid-Cities Classic's, Inc., Ron Briggs Motors, Sterling Auto Sales, Cowboy Trucks, and GMC Leasing further commented on §8.154, Dealer Temporary Tags. The dealers interpret that rule to require them to issue temporary dealer tags for each vehicle on the lot.
Response: The department does not concur. Section 8.154(i) authorizes the issuance of dealer temporary tags for each vehicle or for any agent of the licensee. A dealer is not required to issue temporary dealer tags for each vehicle on the lot.
Comment: TADA commented regarding proposed §8.154, Dealer's Temporary Tags. In reference to subsection (k)(2), TADA suggests that the name of the authorized agent be deleted from the information on the temporary tag for the safety of dealer's employees and to prevent identity theft.
Response: The department has no objection to revising the design of the authorized agent tag by removing the name of the agent. Section 8.154(k)(2) has been revised to remove the requirement to include the agent's name on the temporary tag.
Comment: Representatives from Mid-Cities Classic's, Inc., Ron Briggs Motors, Sterling Auto Sales, Cowboy Trucks, and GMC Leasing commented regarding §8.155, stating that buyer's temporary tags should be valid for 20 working days instead of 21 calendar days since the licensee has 20 working days to apply to transfer the vehicle's title.
Response: The department does not concur. The statutory language that provides for the length of time for the temporary tag and the time the dealer has to apply for the transfer of title are not consistent. Transportation Code, §503.063(b) provides that the buyer's temporary tag be issued for 21 calendar days. The department does not have the authority to change this time period to match the length of time the dealer has to transfer title under Transportation Code, §501.0234(f).
Comment: TADA commented regarding proposed §8.156, Buyer's Temporary Tag Receipt and Notice to Buyer. TADA requests authorization for the Notice to Buyer to be printed on the buyer's receipt or on the buyer's order.
Response: The department has no objection to the Notice to Buyer being printed on the buyer's receipt or buyer's order. The rule as written does not require separate documents or prohibit the required information from being printed with the buyer's receipt or buyer's order.
Comment: The Texas Police Association comments that the requirement in §8.156 that a registration receipt be kept in the vehicle and the creation of a real time data base will aid law enforcement.
Response: The department concurs. Requiring a registration receipt be kept in the vehicle and the creation of a real time data base allows law enforcement to verify the legitimate use of a temporary tag.
Comment: Representatives from Mid-Cities Classic's, Inc., Ron Briggs Motors, Sterling Auto Sales, Cowboy Trucks, and GMC Leasing commented on §8.159 concerning the limit of advance tag numbers available for emergencies and Internet-down situations, particularly for those dealers eligible for only one tag. The dealers complained that the limit may impair the ability of the dealer to sell vehicles.
Response: The department does not concur. Transportation Code, §503.063 and §503.0631 require that dealers have a one-day supply of Internet-down and a one-week supply of emergency advance tags. The language adheres to the statute. It is anticipated that the emergencies and Internet-down situations where advance tag usage is authorized will be of very short duration, and it is unlikely that the supply of advance tag numbers will prevent a licensee from completing a sales transaction.
STATUTORY AUTHORITY
The repeals are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Occupations Code, §2301.005 and §2301.155, and Transportation Code, §503.002, which authorize the commission to establish rules for motor vehicle dealers.
CROSS REFERENCE TO STATUTE
Occupations Code, §2301.354 and §2301.651, and Transportation Code, §§502.451, 503.005, 503.027, 503.028, 503.032, 503.062, 503.0625, 503.0626, 503.063, 503.0631, and 503.0632.
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 March 28, 2008.
TRD-200801652
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: April 17, 2008
Proposal publication date: January 18, 2008
For further information, please call: (512) 463-8683
43 TAC §§8.138 - 8.140, 8.146, 8.150 - 8.160
STATUTORY AUTHORITY
The new sections are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Occupations Code, §2301.005 and §2301.155, and Transportation Code, §503.002, which authorize the commission to establish rules for motor vehicle dealers.
CROSS REFERENCE TO STATUTE
Occupations Code, §2301.354 and §2301.651, and Transportation Code, §§502.451, 503.005, 503.027, 503.028, 503.032, 503.062, 503.0625, 503.0626, 503.063, 503.0631, and 503.0632.
§8.138.Use of Metal Dealer License Plates.
(a) Metal dealer license plates shall be attached to the rear license plate holder of vehicles on which such plates may be displayed pursuant to Transportation Code, §503.061. Although not a requirement, a copy of the receipt for the metal dealer's plate issued by the division should be carried in the vehicle so that it can be presented to law enforcement personnel upon request.
(b) Metal dealer license plates may not be displayed on laden commercial vehicles being operated or moved upon the public streets or highways or on the dealer's service or work vehicles.
(1) Examples of vehicles considered as service or work vehicles for purposes of this subsection are:
(A) a vehicle used for towing or transporting other vehicles;
(B) a vehicle, including a light truck, used in connection with the operation of the dealer's shops or parts department;
(C) a courtesy car on which a courtesy car sign is displayed;
(D) a rental or lease vehicle; and
(E) a boat trailer owned by a dealer or manufacturer that is used to transport more than one boat.
(2) A light truck is not considered to be a laden commercial vehicle when it is:
(A) mounted with a camper unit; or
(B) towing a trailer for recreational purposes.
(3) As used in this subsection, "light truck" has the meaning assigned by Transportation Code, §541.201.
(c) Metal dealer license plates may be displayed only on the type of vehicle for which the general distinguishing number is issued and which a dealer is licensed to sell. Non-franchised dealers may not display metal dealer plates on new motor vehicles.
(d) A dealer shall maintain a record of each dealer metal plate issued to that dealer that contains:
(1) the assigned metal plate number;
(2) the year and make of the vehicle to which the plate is affixed;
(3) the vehicle identification number (VIN) of the vehicle; and
(4) the name of the person in control of the vehicle.
(e) Dealer metal plates that cannot be accounted for shall be voided in the dealer's record and reported as missing to the department within three days of the date that the discovery is made. After a plate is reported as missing it is no longer valid for use.
(f) The dealer's record required under subsections (d) and (e) of this section shall be available at the dealer's location during normal working hours for review by a representative of the department.
§8.140.Established and Permanent Place of Business.
A dealer must meet the following requirements at each location where the dealer sells or offers vehicles for sale.
(1) Business hours for retail dealers.
(A) A retail dealer's office facility shall be open at least four days per week for at least four consecutive hours per day between the hours of 8:00 a.m. and 8:00 p.m.
(B) The dealer's business hours for each day of the week must be posted at the main entrance of the dealer's office that is accessible to the public. The owner or a bona fide employee of the dealer shall be at the dealer's licensed location during the posted business hours for the purpose of buying, selling, exchanging, or leasing vehicles. If the owner or a bona fide employee is not available to conduct business during the dealer's posted business hours due to special circumstances or emergencies, a separate sign must be posted indicating the date and time the dealer will resume operations. The dealer shall notify the division in writing of any change in the dealer's standard business hours. Regardless of the retail dealer's business hours the dealer's telephone must be answered from 8:00 a.m. to 5:00 p.m. weekdays by a bona fide employee, answering service, or answering machine.
(2) Business hours for wholesale dealers. A dealer who holds only a wholesale license must post its business hours at the main entrance of the dealer's office. A wholesale dealer shall be at the dealer's licensed location for at least two weekdays per week at least two consecutive hours per day between the hours of 8:00 a.m. and 6:00 p.m. Regardless of the wholesale dealer's business hours the dealer's telephone must be answered from 8:00 a.m. to 5:00 p.m. weekdays by a bona fide employee, answering service, or answering machine.
(3) Business sign requirements for retail dealers. A retail dealer must display a conspicuous, permanent sign with letters at least six inches in height showing the dealer's business name, or assumed name as reflected on the dealer's license, under which the dealer conducts business. The sign may omit terms such as "Inc.," "LLC," "LP," or similar identifiers of the entity type. The sign must be permanently mounted and must be readable from the street at the address listed on the application for the dealer license. Temporary banners or signs are not acceptable; however, a franchised dealer may, for the purpose of obtaining its license, use a temporary sign or banner if the dealer can show proof that a factory-specific sign is on order that meets the requirements set out in this paragraph.
(4) Business sign requirements for wholesale dealers. A wholesale dealer must display a conspicuous, permanent sign with letters at least six inches in height showing the dealer's business name or assumed name as reflected on the dealer's license, under which the dealer conducts business. The sign may omit terms such as "Inc.," "LLC," "LP," or similar identifiers of the entity type. The sign must be permanently mounted on the business property and shall be on the main door to the dealer's office or on the outside of the building housing the office. If the dealership is located in an office building with one or more other businesses and an outside sign is not permitted by the landlord, a business sign permanently mounted on or beside the main door to the dealer's office with letters at least two inches in height is acceptable. Temporary banners or signs are not acceptable.
(5) Office structure for retail and wholesale dealers. Unless otherwise authorized by the Transportation Code, a dealer that files an application for a new license or a supplemental location after May 1, 2008 must conform to the requirements of this paragraph.
(A) The office of a retail or wholesale dealer must be located in a building, with connecting exterior walls on all sides, that has been assigned a separate mailing address by the U.S. Postal Service. The office structure must have at least 100 square feet of interior floor space exclusive of hallways, closets, or restrooms and have a minimum seven foot ceiling.
(B) A dealer's office must comply with all applicable local zoning ordinances and deed restrictions.
(C) A dealer's office must have electricity with adequate heating and lighting.
(D) A dealer's office may not be located within a residence, apartment house, hotel, motel, or rooming house.
(E) A storeroom, closet, stock room, or any other room that is not open to the public may not be designated as the dealer's office.
(F) A route to a dealer's office may not pass through a food preparation area.
(G) The physical address of the dealer's office must be recognized by the U.S. Postal Service or capable of receiving U.S. mail. Licenses and metal dealer plates will not be mailed to any out-of-state address.
(H) A portable-type office structure may qualify as an office only if the structure meets the requirements of this section and is not a readily moveable trailer or other vehicle.
(6) Required office equipment for retail and wholesale dealers. At a minimum, the office must be equipped with:
(A) a desk;
(B) two chairs;
(C) a file cabinet to hold records;
(D) Internet access and printer;
(E) a fax machine; and
(F) a land-based, working telephone listed in the business name or assumed name under which the dealer does business.
(7) Number of retail dealers in one office. Not more than four retail dealers may be located in the same business structure.
(8) Number of wholesale dealers in one office. Not more than eight wholesale dealers may be located in the same business structure.
(9) Wholesale and retail dealers office sharing prohibition. Unless otherwise authorized by the Transportation Code, a retail motor vehicle dealer and a wholesale motor vehicle dealer either of which is established after September 1, 1999, may not be located in the same business structure.
(10) Dealer housed with other business.
(A) If a person conducts business as a dealer in conjunction with another business owned by the same person and under the same name as the other business, the same telephone number may be used for both businesses. If the name of the dealer differs from that of the other business, a separate telephone listing, a separate telephone and fax number, and a separate sign for each business is required.
(B) A person may conduct business as a dealer in conjunction with another business not owned by that person only if the dealer owns the property on which business is conducted or has a separate lease agreement from the owner of that property meeting the requirements of paragraph (13) of this section. The same telephone number may not be used by both businesses. The dealer must have separate business signs, telephone listings, and office equipment required under this section.
(11) Display area requirements. A wholesale dealer is not required to have display space at the dealer's business premises. A retail dealer must have an area designated as display space for the dealer's inventory in accordance with this subsection.
(A) The display area must be located at the dealer's business address or contiguous with the dealer's address. A non-contiguous storage lot is permissible only if there is no public access and no sales activity occurs at the storage lot. A sign stating the dealer's name and the fact the property is a storage lot is permissible.
(B) A dealer's display area must be sufficient to display at least five vehicles of the type for which the general distinguishing number is issued. Those spaces must be reserved exclusively for the dealer's inventory and may not be shared with another business or a public parking area, a driveway to the office, or another dealer's display area.
(C) The display area may not be on a public easement, right-of-way, or driveway unless the governing body having jurisdiction of the easement, right-of-way, or driveway expressly consents in writing to use as a display area. If the easement, right-of-way, or driveway is a part of the state highway system, use as a display area may only be authorized by a lease agreement.
(D) The display area must be used exclusively for the dealer's inventory.
(E) If the display area is in conjunction with another vehicle dealership, the display area must be separated in such a manner that the inventories of the dealers are readily discernible from each other. The inventory of each dealer must be grouped together and not intermingled and each vehicle in the inventory of a dealer must be clearly marked to identify the dealer offering the vehicle for sale.
(F) If the display area is in conjunction with another business that is not related to the sale or operation of motor vehicles, the display area for the dealer's inventory must be separated from any other parking area by a material object or barricade that is affixed to the ground in a manner that cannot be readily moved by an individual.
(G) If the display area is in conjunction with another business that is not related to the sale or operation of motor vehicles, a permanent sign must be erected that designates the area as reserved for the dealer's inventory with the dealer's name and telephone number on the sign with letters at least six inches in height. When the display area is full, additional inventory vehicles may be parked outside the display area only in an area immediately adjacent to the barricaded area. The additional inventory must be on the licensed premises and not in any restricted area such as right-of-way or public sidewalks. Any additional inventory not within the barricaded area must be identified by a sign, with the dealer's name and telephone number that clearly distinguishes the inventory from any public or employee parked vehicles.
(H) The display area must be adequately illuminated if the dealer is open after sundown so that vehicles for sale can be properly inspected by any prospective customer.
(I) The display area may be located inside a building, subject to approval by the division director or the director's designee.
(J) If the dealer's premises includes gasoline pumps or houses another business that sells gasoline, the dealer's display area may not be part of the parking area for gasoline customers and may not interfere with access to or from the gasoline pumps. The display area may not contain a fuel fill port or any fire prevention access to the fuel tanks.
(12) Dealer with salvage dealer license. If a dealer also holds a salvage dealer license, each salvage vehicle that is offered for sale on the premises of the dealer's display area must be clearly and conspicuously marked with a sign that informs the potential buyers that the vehicle is a salvage vehicle. This requirement does not apply to a licensed salvage pool operator.
(13) Lease requirements. If the premises from which a dealer conducts business, including any display area that is not owned by the dealer, the dealer must maintain a lease that is continuous with the period for which the dealer's license will be issued. That lease agreement must be on a properly executed form containing at a minimum:
(A) the names of the lessor and lessee;
(B) the period of time for which the lease is valid; and
(C) the street address or legal description of the property, provided that if only a legal description of the property is provided, the applicant must attach a statement that the property description in the lease agreement is the street address identified on the application.
(14) Dealer must display license. A dealer must display the dealer license issued by the department at all times in a manner that makes the license easily readable by the public and in a conspicuous place at each place of business for which it is issued. If the dealer's license applies to more than one location, a copy of the original license may be displayed in each supplemental location.
§8.146.Metal Converter's License Plates.
(a) Metal converter's license plates shall be attached to the rear license plate holder of vehicles on which the plates may be displayed pursuant to Transportation Code, §503.0618.
(b) Metal converter's license plates tags may be displayed only on the type of vehicle that the converter is engaged in the business of assembling or modifying.
(c) When an unregistered new motor vehicle is sold to a converter, the selling dealer shall remove the dealer's temporary tag. The selling dealer may attach a buyer's temporary tag to that vehicle or the purchasing converter may display a converter's temporary tag or metal converter plate on that vehicle.
(d) A converter shall maintain a record of each converter metal plate issued to that converter that contains:
(1) the assigned metal plate number;
(2) the year and make of the vehicle to which the metal plate is affixed;
(3) the vehicle identification number of the vehicle (VIN); and
(4) the name of the person in control of the vehicle.
(e) Converter metal plates that cannot be accounted for shall be voided in the dealer's record and reported as missing to the department within three days of the date that the discovery is made. After a plate is reported as missing it is no longer valid.
(f) The converter's record, required under subsections (d) and (e) of this section, shall be available at the converter's location during normal working hours for review by a representative of the department.
§8.151.Temporary Tags, General Use Requirements, and Prohibitions.
(a) All temporary tags shall be displayed in the rear license plate display area of the vehicle.
(b) All printed information on a temporary tag must be visible and may not be covered or obstructed by any plate holder.
(c) Homemade tags or tags that have buyer's tag information printed on one side and dealer's tag information printed on the other side are not permitted.
(d) Each motor vehicle being transported using the full mount method, the saddle mount method, the tow bar method, or any combination of those methods in accordance with Transportation Code, §503.068(d), must have a dealer's or converter's temporary tag or a buyer's temporary tag, whichever is applicable, affixed to that vehicle. If the vehicle being transported is unable to qualify for registration because it is of a type that is prohibited from operating upon the public streets and highway (i.e., off-highway vehicle or self-propelled machine), a tag shall be displayed that states in bold letters "For Off Highway Use Only."
§8.153.Specifications for All Temporary Tags.
(a) Information printed or completed on all temporary tags must be in black ink.
(b) Dealers and converters may issue a temporary tag by any of the methods described in this subsection. Cardboard or cardboard backing material for temporary tags must be of a thickness and weight of no less than 65-pound cover stock. All temporary tags must be sealed in a 6 inch by 12 inch, 2 mil clear poly bag that covers the entire tag.
(1) A dealer or converter may manually copy the information provided from the database to cardboard pre-printed in accordance with the specifications of the appropriate appendix listed in subsection (c) of this section. Cardboard tags completed by hand must have the information drawn in letters and numerals with a permanent thick black marking pen.
(2) A dealer or converter may print the image of the information provided by the database on 6 inch by 11 inch cardboard.
(3) A dealer or converter may print the image of the information provided by the database on a full 8 1/2 inch by 11 inch sheet label and affix the label to a 6 inch by 11 inch cardboard.
(4) A dealer or converter may print the image of the information provided by the database on a full 8 1/2 inch by 11 inch piece of paper, affix the paper to a 6 inch by 11 inch cardboard by glue or tape so that it is completely adhered to the cardboard backing.
(5) A dealer or converter may print the image of the information provided by the database on a full 8 1/2 inch by 11 inch piece of paper and seal the tag and a cardboard backing in a 6 inch by 12 inch, 2 mil clear poly bag to protect the tag from the elements.
(c) If a dealer or converter uses the option provided by subsection (b)(1) the dealer or converter shall use the design of the respective temporary tag from the appropriate following appendices:
(1) Appendix A-1 - Dealer - Assigned to specific vehicle;
Figure 43 TAC §8.153(c)(1) (.pdf)
(2) Appendix A-2 - Dealer - Assigned to Agent;
Figure 43 TAC §8.153(c)(2) (.pdf)
(3) Appendix B-1 - Buyer - Initial;
Figure 43 TAC §8.153(c)(3) (.pdf)
(4) Appendix B-2 - Buyer - Supplemental;
Figure 43 TAC §8.153(c)(4) (.pdf)
(5) Appendix B-3 - Internet-down Tag;
Figure 43 TAC §8.153(c)(5) (.pdf)
(6) Appendix B-4 - Emergency State Tag; and
Figure 43 TAC §8.153(c)(6) (.pdf)
(7) Appendix C-1 - Converter.
Figure 43 TAC §8.153(c)(7) (.pdf)
(d) Dealers and converters shall comply with this section on the date that the database system is made generally available for use by the department. The department will open the database at least 60 days before it becomes generally available to allow dealers an opportunity to review the system and become familiar with the database requirements. The department will publish separate notices in the Texas Register that provide prior notice of:
(1) the date on which the dealers may begin reviewing the database system; and
(2) the date on which compliance with this section is required.
§8.154.Dealer Temporary Tags.
(a) Dealer temporary tags may be displayed only on the type of vehicle for which the general distinguishing number is issued and for which a dealer is licensed to sell.
(b) Dealer temporary tags may be used by the dealer only to:
(1) demonstrate the vehicle or cause the vehicle to be demonstrated to a prospective buyer for sale purposes only;
(2) convey or cause the vehicle to be conveyed:
(A) from one of the dealer's places of business in this state to another of the dealer's places of business in this state;
(B) from the dealer's place of business to a place where the vehicle is to be repaired, reconditioned, or serviced;
(C) from the state line or a location in this state where the vehicle is unloaded to the dealer's place of business;
(D) from the dealer's place of business to a place of business of another dealer;
(E) from the point of purchase by the dealer to the dealer's place of business; or
(F) to road test the vehicle; or
(3) use the vehicle for or allow its use by a charitable organization or use the vehicle or allow its use in parades.
(c) A vehicle being conveyed under this section is exempt from the inspection requirements of Transportation Code, Chapter 548.
(d) A dealer who holds a wholesale motor vehicle auction general distinguishing number may display its dealer temporary tags on any vehicles that are transported to or from the licensed auction location by a bona fide employee or agent of the auction.
(e) When an unregistered vehicle is sold to another dealer, the selling dealer shall remove any dealer temporary tag. The selling dealer may attach a buyer's temporary tag to the vehicle or the purchasing dealer may display a dealer temporary tag or metal dealer plate on the vehicle. If a vehicle is consigned from one dealer to another, the vehicle must display the temporary tag of the dealer to which that vehicle was consigned.
(f) Dealer temporary tags may not be displayed on laden commercial vehicles being operated or moved upon the public streets or highways or on the dealer's service or work vehicles. This subsection does not apply to buyer tags or supplemental buyer tags or to dealer tags placed on a vehicle loaned to a charitable organization or school.
(1) Examples of vehicles considered as service or work vehicles for purposes of this subsection are:
(A) a vehicle used for towing or transporting other vehicles;
(B) a vehicle, including a light truck used in connection with the operation of the dealer's shops or parts department;
(C) a courtesy car on which a courtesy car sign is displayed;
(D) a rental or lease vehicle; and
(E) any boat trailer owned by a dealer or manufacturer that is used to transport more than one boat.
(2) A light truck is not considered to be a laden commercial vehicle when it is:
(A) mounted with a camper unit; or
(B) towing a trailer for recreational purposes.
(3) A vehicle bearing a dealer's temporary tag is not considered to be a laden commercial vehicle when it is:
(A) towing another vehicle bearing the same dealer's temporary tags, and
(B) both vehicles are being conveyed from the dealer's place of business to a licensed wholesale auto auction or from a licensed wholesale auto auction to the dealer's place of business.
(4) As used in this subsection, "light truck" has the same meaning assigned by Transportation Code, §541.201.
(g) A dealer temporary tag may not be used to operate a vehicle for the personal use of a dealer or a dealer's employee.
(h) A dealer temporary tag must show its expiration date which may not exceed 60 days after its date of issuance.
(i) A dealer temporary tag may be issued by a dealer to a specific vehicle or to a dealer's agent who is authorized to operate a motor vehicle owned by the dealer.
(j) A dealer who issues a dealer temporary tag to a specific vehicle must ensure that the following information is placed on the tag:
(1) the vehicle-specific number from database;
(2) the year and make of vehicle;
(3) the vehicle identification number (VIN) of the vehicle; and
(4) the month, day, and year of the tag's expiration.
(k) A dealer who issues a dealer temporary tag to an agent must ensure that the following information is placed on the tag:
(1) the agent-specific number from the database; and
(2) the month, day, and year of the tag's expiration.
§8.155.Buyer's Temporary Tags.
(a) A temporary buyer's tag or supplemental buyer's tag may be displayed only on a vehicle that may be operated upon the public streets and highways and for which a sale has been consummated.
(b) A dealer must place a temporary buyer's tag on any new or used vehicle sold by the dealer, except for a vehicle sold in a wholesale transaction in which the purchasing dealer places its own dealer temporary tag on the vehicle.
(c) Temporary buyer's tags are valid for a period that does not exceed 21 calendar days after the date the vehicle is sold.
(d) If a dealer has been unable to obtain the necessary documents to obtain permanent metal license plates on behalf of the buyer because the documents are in the possession of a lienholder who has not complied with the terms of Transportation Code, §501.115(a), the dealer may issue a supplemental buyer's tag. Within 20 working days of the date of sale the dealer must access the database and renew the vehicle-specific number previously issued. The supplemental buyer's tag is valid for a period that does not exceed 20 working days after the date of its issuance. The dealer may not issue more than one supplemental buyer's tag for a vehicle.
(e) The dealer must ensure that the following information is placed on a buyer's or supplemental buyer's tag that the dealer issues:
(1) the vehicle-specific number obtained from database;
(2) the year and make of vehicle;
(3) the vehicle identification number (VIN) of the vehicle; and
(4) the month, day, and year of the tag's expiration.
§8.160.Converter's Temporary Tags.
(a) Converter's temporary tags may be used only by the converter or the converter's employees on unregistered vehicles to:
(1) demonstrate the vehicle, or cause the vehicle to be demonstrated, to a prospective buyer who is a franchised motor vehicle dealer or an employee of a franchised motor vehicle dealer; or
(2) convey the vehicle or cause the vehicle to be conveyed:
(A) from one of the converter's places of business in this state to another of the converter's places of business in this state;
(B) from the converter's place of business to a place where the vehicle is to be assembled, repaired, reconditioned, modified, or serviced;
(C) from the state line or a location in this state where the vehicle is unloaded to the converter's place of business;
(D) from the converter's place of business to a place of business of a franchised motor vehicle dealer; or
(E) to road test the vehicle.
(b) Prospective buyers who are employees of a franchised dealer or a converter may operate a vehicle displaying converter's temporary tags during a demonstration.
(c) A vehicle being conveyed while displaying a converter's temporary tag is exempt from the inspection requirements of Transportation Code, Chapter 548.
(d) Converter's temporary tags may not be used to operate a vehicle for the converter's or a converter's employee's personal use.
(e) Converter's temporary tags may be displayed only on the type of vehicle that the converter is engaged in the business of assembling or modifying.
(f) When an unregistered new motor vehicle is sold to a converter, the selling dealer shall remove a dealer's temporary tag. The selling dealer may attach a buyer's temporary tag to the vehicle or the purchasing converter may display a converter's temporary tag or metal converter plate on the vehicle.
(g) A converter temporary tag must show its expiration date which may not be more than 60 days after the date of its issuance.
(h) A converter temporary tag may be issued by a converter to a specific vehicle or to a converter's agent who is authorized to operate a motor vehicle owned by the converter.
(i) A converter who issues a temporary converter's tag to a specific vehicle shall ensure that the following information is placed on the tag:
(1) the vehicle specific number from database;
(2) the year and make of vehicle;
(3) the vehicle identification number (VIN) of the vehicle; and
(4) the month, day and year of the tag's expiration.
(j) A converter who issues a temporary converter's tag to an agent shall ensure that the following information is placed on the tag:
(1) the agent-specific number from the database; and
(2) the month, day, and year of the tag's expiration.
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 March 28, 2008.
TRD-200801653
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: April 17, 2008
Proposal publication date: January 18, 2008
For further information, please call: (512) 463-8683
The Texas Department of Transportation (department) adopts amendments to §18.1, Purpose, §18.2, Definitions, §18.10, Purpose, §18.11, Motor Carrier Registration, §18.13, Application for Motor Carrier Registration, §18.14, Expiration and Renewal of Commercial Motor Vehicle Registration, §18.16, Insurance Requirements; new §18.18, Unified Carrier Registration System; amendments to §18.19, Short-term Lease and Substitute Vehicles, §18.31, Investigations and Inspections of Motor Carrier Records, §18.32, Motor Carrier Records, §18.70, Purpose, §18.71, Administrative Penalties, §18.72, Suspension and Revocation; new §18.73, Administrative Proceedings, §18.74, Settlement Agreements, §18.75, Implications for Nonpayment of Penalties, and §18.76, Registration Suspension Ordered under Family Code, all concerning motor carriers. The amendments to §§18.1, 18.2, 18.10, 18.11, 18.13, 18.14, 18.16, 18.19, 18.31, 18.32, 18.70 - 18.72, and new 18.18, and 18.73 - 18.76 are adopted without changes to the proposed text as published in the December 28, 2007, issue of the Texas Register (32 TexReg 9923) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS AND NEW SECTIONS
The adopted amendments and new sections are necessary to implement the provisions of House Bills 2093 and 2094, 80th Legislature, Regular Session, 2007 and to clarify existing information.
House Bill 2093 provides the department additional regulatory authority over motor carriers and the issuance of overweight and oversize permits. The bill increases the department's authority to investigate, enforce, and impose administrative penalties and sanctions on motor carriers for violations of any statute, rule, or order.
The bill also authorizes the department to enter the federal Unified Carrier Registration (UCR) system. The UCR system replaced the Single State Registration System (SSRS) as of January 1, 2007. As a participant in the UCR system the department will facilitate the federal registration of interstate motor carriers.
In addition to changes to the motor carrier registration enforcement procedures, House Bill 2093 also provided for administrative enforcement of commercial motor vehicle overweight or oversize permit violations. The administrative procedures outlined in these rules will also be used for administrative actions involving violations of Transportation Code, Chapter 623.
House Bill 2094 transfers the regulatory authority for tow trucks and vehicle storage facilities from the department to the Texas Department of Licensing and Regulation (TDLR). As of January 1, 2008 TDLR will be responsible for all aspects of regulating these entities. Due to the transfer of responsibilities, §§18.1, 18.2, 18.10, 18.11, 18.13, 18.14, 18.16, 18.19, and 18.32, are amended to delete references to tow trucks and vehicle storage facilities.
Amendments to §18.2, Definitions, amend the definition of commercial motor vehicle to exclude tow trucks permitted to operate by TDLR and certain motor vehicles registered under the UCR system. Under Transportation Code, §643.002 tow trucks licensed by TDLR are excluded from the motor carrier registration requirements, therefore the provisions of 43 TAC Chapter 18 do not apply. This section also adds the definition of Unified Carrier Registration (UCR) and deletes the definitions of consent and nonconsent tows.
Amendments to §18.14, Expiration and Renewal of Commercial Motor Vehicle Registration, add clarification as to when a motor carrier registered under the federal UCR program must also renew under the state motor carrier registration system. Motor carriers operating as charter buses, household goods movers, and recyclable material and waste carriers are also required to maintain state motor carrier registration. Other motor carriers registered under UCR only have to make an initial state registration if the carrier has never been registered in the state or if for some reason the UCR registration is not continuous. If the UCR registration lapses or is revoked or suspended for any reason the motor carrier must file a new registration packet with the state under the provisions of §18.11.
New §18.18 provides that the state, through the department, will participate in the UCR system. The department participated in the SSRS prior to the implementation of the UCR program. All interstate motor carriers operating in Texas are required to register with the UCR system. The department will provide the service necessary for the motor carriers to submit their UCR registration.
Amendments to §18.31, Investigations and Inspections of Motor Carrier Records, adds that the department can enter a motor carrier's place of business to investigate violations under Transportation Code, Chapter 645. Transportation Code, §645.003 provides the department with the authority to enforce Chapter 645 and rules adopted under that chapter. To enforce the rules and statutes the department must have access to investigate the violations.
Section 18.31 is further amended by adding a new provision to allow investigators to set appointments for records inspections by certified mail or facsimile. The current rules require the two parties to agree to a location and time if the motor carrier's normal business hours are not sufficient. By allowing investigators to set a time for inspection of records motor carriers will be unable avoid sanctions by withholding access to records.
Amendments to §18.32, Motor Carrier Records, reformat the language of subsection (a) by adding proof of registration fee payments to the list of general records that must be maintained by the motor carrier at its principal place of business. The specific language referring to registration receipts under SSRS in paragraph (4) is deleted. The deleted language is no longer necessary since SSRS is no longer operational. However, the department will still require that the motor carrier maintain proof of all registration fee payments.
Amendments to §18.70, Purpose, allow for denial of registration as an administrative sanction for violations of Transportation Code, Chapter 643 or any rule or order adopted under Transportation Code, Chapter 643, as authorized under House Bill 2093.
Amendments to §18.71(a), Definition, delete the definition of "director" as it is no longer necessary to have a specific definition for the director due to the new administrative enforcement process.
Section 18.71(b) and (c) are redesignated as subsections (a) and (b) and are amended by adding rules or orders to the list of violations in which the department can seek administrative penalties. House Bill 2093 increased the department's authority by authorizing administrative sanctions and penalties for violations of any rule adopted under Transportation Code, Chapters 643 or 645 and also any order issued under those chapters.
Section 18.71 is further amended by deleting language that referenced the current administrative enforcement process. Subsections (e) - (j) are deleted. House Bill 2093 established a new administrative hearing process which is detailed in §18.73.
Amendments to §18.72, Suspension and Revocation, address changes to the statute regarding the types of authorized administrative sanctions. In addition to suspending and revoking a motor carrier's registration the department now has the authority to deny registration to a motor carrier who fails to comply with registration requirements. The section is also amended to authorize sanctions for failing to comply with any 43 TAC Chapter 18 rule or any order issued pursuant to an action taken under that chapter.
Amendments to §18.72(b), Department of Public Safety, remove the requirement that the request for administrative action on safety violation suspension come from the executive director of the Department of Public Safety. As amended the rule requires the request to be in writing and to include evidence of the violation. This will streamline this process and allow the department to address safety violations in a timely manner.
Section 18.72(c), the subsection heading is changed from Action without hearing, to Probation. The changes to the subsection provide guidance on the issuance of probation as an administrative sanction. The language provides additional guidance the department will consider in determining whether a motor carrier is eligible for probation. This section also provides that the department will set the length of the probation by reviewing the seriousness of the offense and previous violation by the motor carrier. These guidelines will help ensure that the department is consistent in administering the probation program.
Section 18.72(d), (e), and (g), regarding the administrative process, are deleted because of the new process established by House Bill 2093 and set out in §18.73. The language in subsection (f) regarding child support suspensions is moved to §18.76. The administrative process for these types of suspensions are handled by the Office of the Attorney General. The department does not participate in the hearing process, therefore, separating this type of suspension action in its own section improves the understanding and eliminates confusion as to the department's role.
New §18.73, Administrative Proceedings, is added to provide the notice requirements for the new administrative hearing process. The language tracks Transportation Code, §643.2525 and clarifies the two types of notices mailed to the alleged violator.
New §18.74, Settlement Agreements, details the settlement agreement process. The department can enter into a compromise settlement agreement with an alleged violator any time before the issuance of a final order. This section states that the agreement shall include a clause that allows the department the authority to revoke the agreement if the alleged violator fails to abide by the terms of the agreement. This provision will ensure that the department continues to have authority to enforce future compliance.
New §18.75, Implications for Nonpayment of Penalties, is added to provide the implications for nonpayment of any penalty imposed against a violator. Under the current process the department did not have authority to take additional administrative action if the motor carrier failed to pay the imposed penalties. House Bill 2093 amended Transportation Code, §643.2525(k) to authorize the department to initiate a new administrative action to suspend, revoke, or deny motor carrier registration if the motor carrier fails to pay the penalty or any assessed costs before the 61st day after the day the decision becomes final. This section is amended to comply with the new provisions.
New §18.76, Registration Suspension Ordered under Family Code, includes the substance formerly contained in §18.73(f) regarding motor carrier registration suspensions due to orders issued under Family Code, Chapter 232, relating to payment of child support or possession of or access to a child. The department may suspend registration under this section without following the administrative process under §18.73 of this chapter. The Office of the Attorney General oversees the administrative hearing process for these types of violation. A suspension under this section may be lifted only on receipt of an order under Family Code, §232.013. This section complies with the requirements of Family Code, Chapter 232.
COMMENTS
No comments on the proposed amendments and new sections were received.
Subchapter A. GENERAL PROVISIONS
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically Transportation Code, §643.003, which authorizes the commission to adopt rules to administer Transportation Code, Chapter 643 regarding motor carrier registration and Transportation Code, §645.003 which requires the commission to adopt rules to administer Transportation Code, Chapter 645 regarding the single state or the unified carrier registration systems.
CROSS REFERENCE TO STATUTE
Transportation Code, Chapter 643, Transportation Code, Chapter 645, and 49 U.S.C. §14504a.
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 March 28, 2008.
TRD-200801654
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: April 17, 2008
Proposal publication date: December 28, 2007
For further information, please call: (512) 463-8683
43 TAC §§18.10, 18.11, 18.13, 18.14, 18.16, 18.18, 18.19
STATUTORY AUTHORITY
The amendments and new section are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically Transportation Code, §643.003, which authorizes the commission to adopt rules to administer Transportation Code, Chapter 643 regarding motor carrier registration and Transportation Code, §645.003 which requires the commission to adopt rules to administer Transportation Code, Chapter 645 regarding the single state or the unified carrier registration systems.
CROSS REFERENCE TO STATUTE
Transportation Code, Chapter 643, Transportation Code, Chapter 645, and 49 U.S.C. §14504a.
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 March 28, 2008.
TRD-200801655
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: April 17, 2008
Proposal publication date: December 28, 2007
For further information, please call: (512) 463-8683
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically Transportation Code, §643.003, which authorizes the commission to adopt rules to administer Transportation Code, Chapter 643 regarding motor carrier registration and Transportation Code, §645.003 which requires the commission to adopt rules to administer Transportation Code, Chapter 645 regarding the single state or the unified carrier registration systems.
CROSS REFERENCE TO STATUTE
Transportation Code, Chapter 643, Transportation Code, Chapter 645, and 49 U.S.C. §14504a.
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 March 28, 2008.
TRD-200801656
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: April 17, 2008
Proposal publication date: December 28, 2007
For further information, please call: (512) 463-8683
STATUTORY AUTHORITY
The amendments and new sections are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically Transportation Code, §643.003, which authorizes the commission to adopt rules to administer Transportation Code, Chapter 643 regarding motor carrier registration and Transportation Code, §645.003 which requires the commission to adopt rules to administer Transportation Code, Chapter 645 regarding the single state or the unified carrier registration systems.
CROSS REFERENCE TO STATUTE
Transportation Code, Chapter 643, Transportation Code, Chapter 645, and 49 U.S.C. §14504a.
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 March 28, 2008.
TRD-200801657
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: April 17, 2008
Proposal publication date: December 28, 2007
For further information, please call: (512) 463-8683