Part 1. TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 6. STATE INFRASTRUCTURE BANK
Subchapter E. FINANCIAL ASSISTANCE AGREEMENTS
The Texas Department of Transportation (department) adopts amendments to §6.42, performance of work, and §6.45, financial and credit requirements, concerning State Infrastructure Bank financial assistance agreements. The amendments to §6.42 are adopted with changes to the proposed text as published in the November 30, 2007, issue of the Texas Register (32 TexReg 8715) and will be republished. The amendments to §6.45 are adopted without changes to the proposed text as published in the November 30, 2007, issue of the Texas Register and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
The State Infrastructure Bank (SIB) is an account within the state highway fund established under Transportation Code, Chapter 222, Subchapter D, as authorized by Title 23, United States Code Annotated, Section 610. The commission uses money deposited in the SIB to provide financial assistance to public and private entities, generally in the form of loans, for authorized transportation projects. The amendments seek to reduce the administrative costs and burdens of applicants and the department imposed through SIB financial assistance agreements under the current rules, thus ensuring that financial assistance proceeds and project contributions from applicants are dedicated to successful completion of the project and repayment of the financial assistance. The amendments facilitate a more thorough oversight by the department of recipients' use of financial assistance and clarify that financial assistance proceeds cannot be used to pay the costs of a transportation project incurred before the financial assistance agreement is fully executed.
Amendments to §6.42(a)(1) clarify that financial assistance proceeds cannot be used to pay for project costs incurred prior to execution of the financial assistance agreement where project work is performed by the department. These amendments will facilitate more thorough oversight by the department of a recipients' use of financial assistance by expressly limiting costs paid with financial assistance proceeds to project costs incurred after the financial assistance agreement is fully executed and, therefore, limit the costs that the department must monitor.
Amendments to §6.42(b)(3) eliminate the requirement that an applicant for financial assistance must annually have a certified public accountant perform a full audit of project records and accounts at the applicant's cost. Section 6.42(b)(3) requires applicants to submit an annual report to the department detailing project expenditures, providing an accounting of financial assistance proceeds, and providing any other information requested by the department. In addition, and to increase flexibility, new paragraph (4) of §6.42(b) requires applicants to submit additional reports containing the same or similar information as that required by §6.42(b)(3) or other information related to project expenditures, if requested by the department. Together, the amendments should reduce the administrative costs and burdens of applicants and the department imposed through SIB financial assistance agreements under the current rules, thus ensuring that financial assistance proceeds and project contributions from applicants are dedicated to successful completion of the project and repayment of the financial assistance. The amendments will facilitate more thorough oversight by the department of recipients' use of financial assistance through utilization of less formal reporting requirements that applicants are better prepared to satisfy, while still providing sufficient data for the department to conduct oversight.
Amendments to §6.42(b)(5) add that reports required under a financial assistance agreement must also be provided to the department after completion of the project, maintaining consistency with the removal of an annual audit requirement. These amendments will ensure that any reports that were prepared by the applicant during construction of the project will be submitted to the department for its records after the project is completed.
New §6.42(b)(6) clarifies that financial assistance proceeds cannot be used to pay for project costs incurred prior to execution of the financial assistance agreement where project work is performed by the applicant. This amendment will facilitate more thorough oversight by the department of recipients' use of financial assistance by expressly limiting costs that can be paid with financial assistance proceeds to project costs incurred after the financial assistance agreement is fully executed and, therefore, limit the costs that the department must monitor.
Amendments to §6.45(4) add that reports required under a financial assistance agreement must be provided to the department, which maintains consistency with the removal of an annual audit requirement while maintaining the department's ability to request a full audit. This amendment will ensure that the applicant submits to the department any reports that are required by law or requested by the department, and it maintains the department's ability to request an audit from the applicant.
COMMENTS
No comments on the proposed amendments were received. The department made one grammatical change in §6.42(b)(3) to improve readability.
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, §222.077, which requires the commission to adopt rules governing the SIB.
CROSS REFERENCE TO STATUTE
Transportation Code, §222.072; Transportation Code, §222.073; Transportation Code, §222.074; Transportation Code, §222.0745; and Transportation Code, §222.077.
§6.42.Performance of Work.
(a) Work performed by the department. The department may, in its discretion and consistent with state law, provide all or part of the work connected with the project in the department's normal course of business. For work performed by the department, the following provisions will apply.
(1) The department will account for all costs of the project in the normal course of business in accordance with applicable law. Financial assistance proceeds shall not be used to pay for project costs incurred prior to execution of the financial assistance agreement.
(2) The department will make progress payments or set aside funds from the bank on behalf of the applicant as the department deems necessary. Such actions shall bind the applicant to repayment according to the terms of the agreement(s). Interest shall accrue from the date of the payment or setting aside of funds.
(3) The department's actions and decisions regarding the project shall not be contestable by the applicant.
(4) The applicant shall provide the department, and if applicable, the Federal Highway Administration, and the Federal Transit Administration, or their authorized representatives as applicable, with right of entry or access to all properties or locations necessary to perform activities required to execute the work, inspect the work or aid otherwise in the prompt pursuit of the work.
(b) Work performed by applicant. The department may, in its discretion and consistent with state law, provide that the applicant conduct all or part of the work connected with the project. For work performed by the applicant, the following provisions apply.
(1) The applicant shall comply with applicable requirements of the federal act, Title 23, United States Code, Title 49, United States Code, other applicable state and federal law, and all terms and conditions of any agreements. Where approval or concurrence of the Federal Highway Administration, the Federal Transit Administration, or other federal agency is required, the applicant shall seek such action through the department. The applicant shall reimburse the department for any loss of federal funds to the department resulting from the applicant's failure to comply.
(2) The applicant shall maintain project records and accounts in accordance with generally accepted accounting principles, and all applicable federal and state requirements.
(3) The applicant shall, at the applicant's cost and in a format prescribed by the department, submit an annual report to the department listing project expenditures, providing an accounting of financial assistance proceeds, and providing any other information requested by the department.
(4) In addition to the annual report, the applicant shall, on request of the department and at the applicant's cost, provide a report containing the same or similar information as required in the annual report under subsection (b)(3) of this section or information relating to project expenditures that the applicant is required to provide to another local, state, or federal agency.
(5) The applicant shall hold all project records, accounts, and supporting documents open for state or federal audits until project completion.
(6) Upon completion of the project, the applicant shall forward to the department all project files and reports as requested by the department. The department shall retain these files until all financial assistance has been repaid and any necessary audits have been performed.
(7) Financial assistance proceeds shall not be used to pay for project costs incurred prior to execution of the financial assistance agreement.
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 February 29, 2008.
TRD-200801216
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: March 20, 2008
Proposal publication date: November 30, 2007
For further information, please call: (512) 463-8683
The Texas Department of Transportation (department) adopts amendments to §8.2 Definitions; Conformity with Statutory Requirements, §8.21, Objective, §8.28, Hearing Docket, §8.56, Final Decision, §8.201, Objective, new §8.301, Scope and Purpose, new §8.302, Conformity with Statutory Requirements, new §8.303, Application of Division and SOAH Rules, new §8.304, Notice of Alleged Violation, new §8.305, Filing of Complaints, Protests, and Petitions, new §8.306, Referral to SOAH, new §8.307, Notice of Hearing, new §8.308, Reply to Notice of Hearing and Default Proceedings, new §8.309, Recording and Transcriptions of Hearing Cost, new §8.310, Issuance of Proposals for Decision, Recommendations, and Orders, new §8.311, Amicus Briefs, new §8.312, Discovery, new §8.313, Official Notice of Division Records, new §8.314, Cease and Desist Orders, new §8.315, Statutory Stay, new §8.316, Informal Disposition, and new §8.317, Motion for Rehearing (new Subchapter I, Practice and Procedure for Hearings Conducted by the State Office of Administrative Hearings). The amendments to §§8.2, 8.21, 8.28, 8.56, and 8.201 and new §§8.301 - 8.317 are adopted without changes to the proposed text as published in the November 30, 2007, issue of the Texas Register (32 TexReg 8717) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS AND NEW SECTIONS
The adopted amendments and new subchapter are necessary to give effect to House Bill 3601, 80th Legislature, Regular Session, 2007. House Bill 3601 provides that, effective September 1, 2007, hearings in contested cases under Occupations Code, Chapter 2301 or under Motor Vehicle Division (division) rules must be conducted by an administrative law judge (ALJ) of SOAH. Hearings on matters filed prior to September 1, 2007 remain at the department. The amendments and new Subchapter I provide for the implementation of the legislative mandate.
Amendments to §8.2, Definitions; Conformity with Statutory Requirements, define ALJ and SOAH to reference administrative law judges of the State Office of Administrative Hearings. These terms are used throughout the adopted amendments.
Amendments to §8.21, Objective, clarify that Subchapter B of 43 TAC Chapter 8 applies to contested cases filed before September 1, 2007. New Subchapter I and the provisions of Subchapter B, insofar as the provisions do not conflict with SOAH's rules, govern cases filed on or after September 1, 2007.
Amendments to §8.28, Hearing Docket, state that the division will continue to maintain an index of all cases it dockets, regardless of whether the matter is referred to SOAH for hearing. This will allow the department to track complaints and hearings through the SOAH administrative process to the final decision by the division director.
Amendments to §8.56, Final Decision, clarify that the exception currently in the section for Lemon Law cases brought under Occupations Code, §§2301.601 - 2301.613 or Occupations Code, §2301.204 applies only to cases filed before September 1, 2007 that will be heard by the division. This complies with the new SOAH hearing process required by House Bill 3601.
Amendments to §8.201, Objective, clarify that Subchapter G of 43 TAC Chapter 8 applies to contested cases filed before September 1, 2007. As for cases filed on September 1, 2007 or later, New Subchapter I and 43 TAC Chapter 8 apply if they do not conflict with SOAH rules. With the passage of House Bill 3601 all cases under Occupations Code, Chapter 2301 and Transportation Code, Chapter 503 will be conducted by SOAH and must follow the provisions of 1 TAC Chapter 155.
New §8.301, Scope and Purpose, states that New Subchapter I governs contested matters filed with the division on or after September 1, 2007. Contested and uncontested matters filed prior to September 1, 2007 are governed by Subchapters A through H of 43 TAC Chapter 8. New Subchapter I provides rules and policies to be considered by SOAH administrative law judges in matters referred by the division.
New §8.302, Conformity with Statutory Requirements, clarifies that in the event of a conflict between Occupations Code, Chapter 2301 and Transportation Code, Chapter 503, the definition or procedure referenced in Occupations Code, Chapter 2301 prevails. Occupations Code, §2301.004 provides that unless specifically provided by law, Chapter 2301 governs all aspects of the distribution and sale of motor vehicles. This language is added to clarify the manner in which conflicts between Occupations Code, Chapter 2301 and Transportation Code, Chapter 503 are to be resolved in the hearing process.
New §8.303, Application of Division and SOAH Rules, clarifies the separation of responsibilities between the division and SOAH. The language states that ALJs shall consider Subchapters A through H of 43 TAC Chapter 8 in the hearing and preparation of proposals for decision when those rules do not conflict with other SOAH rules. Agency rules that are not referencing the hearing process and that are not in conflict with SOAH rules should be relied on by all parties participating in the contested case process. Situations unique to motor vehicle contested cases will be found only in 43 TAC Chapter 8 and not in SOAH rules.
New §8.304, Notice of Alleged Violation, describes the process used by the division's enforcement section to inform a subject of an investigation that there is an alleged violation and to provide an opportunity to informally settle the matter. Upon receipt of the notice of alleged violation, the alleged violator has 30 days to informally respond to the allegations and informally settle the matter without a hearing. This provides the alleged violator an opportunity to question and challenge the allegations. The alleged violator can also request a hearing during this time to initiate the contested case process. This pre-hearing process is currently part of the administrative process and the department recognizes the benefit of such a process.
New §8.305, Filing of Complaints, Protests, and Petitions, makes it clear that all complaints, protests, or petitions required or allowed to be filed under the department's enabling statutes or rules must be filed with the director of the division. This section provides for a uniform complaint process and continues the procedure used under the current contested case process.
New §8.306, Referral to SOAH, states that the division shall refer matters to SOAH upon a determination that a hearing is appropriate and lists the most common types of hearings, including enforcement, protest, dealer versus manufacturer, Lemon Law, and hearings on cease and desist orders. This provides necessary guidance on the types of hearing referred to SOAH while also establishing that, in cases involving a complaint, the division will make the initial determination that the matter qualifies for a hearing. Not all complaints will lead to sanctions or administrative actions, therefore, not all will require a hearing. The division will maintain the referral authority to prevent unsupported complaints from congesting the administrative process.
New §8.307, Notice of Hearing, cites the applicable law relating to notices of hearing. It further provides an alternative method of service on parties outside the United States where certified mail is not available. Past experience with the contested case process has shown that alternative service options are necessary to reach parties that reside outside the United States. The goal is to supplement the service on the Secretary of State with other means of service to ensure that notice is received.
New §8.308, Reply to Notice of Hearing and Default Proceedings, states that if a party does not file a reply and does not appear at the hearing, another party may request that the administrative law judge dismiss the matter from SOAH's docket for purposes of presenting it to the director of the department's Motor Vehicle Division (director) for disposition based on default. In a default proceeding, the director may enter a final order with findings that the allegations are deemed admitted. Not later than 10 days after the date of the default proceeding, but before issuance of the final order, a party may file a motion to set aside the default and reopen the record. For good cause shown, the director may set aside the default and remand the matter to SOAH for further proceedings. These procedures will ensure that all parties know the consequences of failing to appear at a scheduled hearing and also will allow the division to finalize uncontested cases and close out the administrative case file.
New §8.309, Recording and Transcriptions of Hearing Cost, states that hearings may be transcribed by a court reporter or electronically recorded at the discretion of the ALJ. As authorized in Government Code, §2001.059, the department may establish how the costs for the court reporter and the transcription of the record will be paid. This rule provides that the costs for transcribing a hearing and preparing an original transcript for the record will be assessed equally among the parties unless otherwise ordered by the director. If a party requests a transcript of a recording, the requesting party is responsible for the cost of preparing the transcript and providing a copy to the director. Copies of recordings will be provided to a party upon written request and payment of the cost of the recording. If a final decision is appealed to the court, the appealing party is responsible for the costs of preparation of the record for the court unless waived by the director. This section continues the procedure currently used for motor vehicle contested cases. The department has determined that it is the responsibility of the parties to provide for the transcript if one is needed to render the final decision.
New §8.310, Issuance of Proposals for Decision, Recommendations, and Orders, states that SOAH shall submit all recommendations and proposals for decision to the director and provide copies to the parties. The director shall furnish all decisions and orders to the parties and SOAH. This clarifies that each agency will provide copies of the documents relating to the decision to the other agency and the parties.
New §8.311, Amicus Briefs, sets out the procedure regarding the filing of amicus briefs. Unless good cause is shown to the director for waiving or extending the deadline, amicus briefs are due to the director, the parties, and SOAH not later than the deadline for exceptions to the proposal for decision. Replies to amicus briefs are due at the same time as replies to exceptions to the proposal for decision. The SOAH ALJ may amend the proposal for decision in response to an amicus brief or reply. This section provides guidance for any party wishing to file an amicus brief and continues the current procedure for motor vehicle contested cases.
New §8.312, Discovery, clarifies that the director will issue commissions to take depositions or subpoenas, but that SOAH will hold any hearings on motions to quash and rule on the motions. This delineates the separation of responsibilities between the division and SOAH and provides information to the parties as to the procedure for obtaining and contesting subpoenas and depositions.
New §8.313, Official Notice of Division Records, allows SOAH to take official notice of division licensing records in accordance with Government Code, Chapter 2001. This section provides for an ALJ's use of the department's records in the ALJ's decision process.
New §8.314, Cease and Desist Orders, describes the requirements for issuing cease and desist orders, with and without notice. A cease and desist order issued without notice expires not later than the 20th day after it is signed, unless it is extended by the director for good cause. A show cause hearing must be held at the earliest possible date and a recommendation must be presented to the director for an interlocutory decision not more than three working days after the hearing. The director's interlocutory decision is sufficient for a complaining party to seek judicial review as set out in Occupations Code, §2301.802. The director may stay the interlocutory cease and desist order during the pendency of the appeal upon a showing of good cause by a party of interest. This section provides the process for the issuance of cease and desist orders and defines the roles of SOAH and the division in the process. This section gives notice to the parties of how and by whom cease and desist orders are granted and establishes the mechanism for contesting the order.
New §8.315, Statutory Stay, describes the process for modifying, vacating, or clarifying a statutory stay. On the request for a hearing by a person affected by a statutory stay, the SOAH ALJ shall hold the hearing on that matter and submit a written recommendation, including a reasoned justification and proposed order, to the director for decision.
New §8.316, Informal Disposition, states that the director may dispose of a contested case at any time by stipulation, agreed settlement, or consent order. The party who filed the complaint, protest, or petition is responsible for dismissing the case from SOAH's docket and presenting a proposed agreed or dismissal order to the director. Proposed agreed orders must contain findings of fact and conclusions of law and must be signed by all parties. The director may adopt an agreed order, reject it and remand to SOAH for hearing, or take any other action as justice requires. This section provides for the opportunity for the parties to continue to negotiate during the contested case process. By providing for informal dispositions, the department is providing an opportunity to resolve matters as expeditiously as possible. This section recognizes that an administrative action should not continue if the parties involved reach an agreement unless justice requires a case to continue.
New §8.317, Motion for Rehearing, provides that motions for rehearing and replies to motions for rehearing are filed with the director. This section clarifies where a motion or reply needs to be filed.
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 (commission) with the authority to establish rules for the conduct of the work of the department, and more specifically, Occupations Code, §§2301.005, 2301.155, and 2301.602, and Transportation Code, §503.002, which authorize the commission to adopt rules as necessary or convenient to administer Occupations Code, Chapter 2301 and Transportation Code, Chapter 503.
CROSS REFERENCE TO STATUTE
Occupations Code, §§2303.607(c), 2301.701 - 2301.713, and 2301.802, and Transportation Code, §503.009.
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 February 29, 2008.
TRD-200801217
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: March 20, 2008
Proposal publication date: November 30, 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 (commission) with the authority to establish rules for the conduct of the work of the department, and more specifically, Occupations Code, §§2301.005, 2301.155, and 2301.602, and Transportation Code, §503.002, which authorize the commission to adopt rules as necessary or convenient to administer Occupations Code, Chapter 2301 and Transportation Code, Chapter 503.
CROSS REFERENCE TO STATUTE
Occupations Code, §§2303.607(c), 2301.701 - 2301.713, and 2301.802, and Transportation Code, §503.009.
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 February 29, 2008.
TRD-200801218
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: March 20, 2008
Proposal publication date: November 30, 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 (commission) with the authority to establish rules for the conduct of the work of the department, and more specifically, Occupations Code, §§2301.005, 2301.155, and 2301.602, and Transportation Code, §503.002, which authorize the commission to adopt rules as necessary or convenient to administer Occupations Code, Chapter 2301 and Transportation Code, Chapter 503.
CROSS REFERENCE TO STATUTE
Occupations Code, §§2303.607(c), 2301.701 - 2301.713, and 2301.802, and Transportation Code, §503.009.
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 February 29, 2008.
TRD-200801219
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: March 20, 2008
Proposal publication date: November 30, 2007
For further information, please call: (512) 463-8683
STATUTORY AUTHORITY
The new sections 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, Occupations Code, §§2301.005, 2301.155, and 2301.602, and Transportation Code, §503.002, which authorize the commission to adopt rules as necessary or convenient to administer Occupations Code, Chapter 2301 and Transportation Code, Chapter 503.
CROSS REFERENCE TO STATUTE
Occupations Code, §§2303.607(c), 2301.701 - 2301.713, and 2301.802, and Transportation Code, §503.009.
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 February 29, 2008.
TRD-200801220
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: March 20, 2008
Proposal publication date: November 30, 2007
For further information, please call: (512) 463-8683
The Texas Department of Transportation (department) adopts amendments to §17.22, concerning motor vehicle registration, §17.30, concerning commercial vehicle registration, §17.68, concerning rebuilt salvage motor vehicles, §17.73, concerning salvage vehicle dealer license, and §17.81, concerning denial, suspension, or revocation of salvage vehicle dealer licenses. The amendments to §17.22 are adopted with changes to the proposed text as published in the November 30, 2007, issue of the Texas Register (32 TexReg 8723). The amendments to §§17.30, 17.68, 17.73 and 17.81 are adopted without changes to the proposed text as published in the November 30, 2007, issue of the Texas Register (32 TexReg 8723) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
The adopted amendments are necessary to implement the provisions of House Bills 1168 and 2992, and Senate Bills 228 and 1119 of the 80th Legislature, Regular Session, 2007, and to update or clarify existing information.
House Bill 1168 amended Government Code, Chapter 2005 to provide general authority to state agencies for the denial, suspension, or revocation of a license or permit if the applicant or license or permit holder knowingly makes a false statement or misrepresentation when applying for or renewing the license. Government Code, Chapter 2005 applies to a salvage vehicle dealer or agent license issued by the department.
House Bill 2992 amended Transportation Code, §502.167 by eliminating the requirement that a person own a minimum of 50 semitrailers in order for the department to issue the person a Five-year Token Trailer license plate. A person, regardless of the number of semitrailers owned, may now qualify to obtain Five-year Token Trailer license plates and the semitrailers may be operated interstate and intrastate.
Senate Bill 228 added Family Code, §232.0135 by requiring the department to, upon receipt of notice from a child support agency, refuse to renew the motor vehicle registration, salvage vehicle dealer license, or salvage vehicle agent license of a person who is delinquent in child support payments.
Senate Bill 1119 added Transportation Code, Chapter 707 to create a photographic traffic signal enforcement system. Transportation Code, §707.017 provides that the department or county tax assessor collector may refuse to register a motor vehicle if the owner fails to pay the civil penalties associated with a violation of Transportation Code, Chapter 707 and the motor vehicle was allegedly involved in the violation.
As required by Senate Bill 228, amendments to §17.22(d), vehicle registration renewal, reformat the language to add new paragraph (6) providing that the department will mark the motor vehicle record of a motor vehicle owned by a person who is delinquent in payment of child support upon notification by a child support agency. A county will refuse to renew the registration of a vehicle if the vehicle record is marked by the department as a motor vehicle that is owned by a person who is delinquent in payment of child support. Subsequent paragraph (7) is renumbered accordingly.
Amendments to §17.22(g) simply correct citation form.
Amendments to §17.22(h), Enforcement of traffic warrant, more clearly explain that under Transportation Code, §702.003 a municipality may contract with the department to mark the motor vehicle record of a vehicle owner for whom a warrant of arrest has been issued for failure to appear in court or who has failed to pay a fine for a traffic violation. A county tax assessor-collector may refuse to renew motor vehicle registration for vehicles whose records have been marked until the municipality requests that the mark be removed. This amendment is necessary to better explain the process of enforcing traffic warrants.
Section 17.22 is further amended by the addition of new subsection (i). This subsection provides that a local authority that operates a traffic signal enforcement system may contract with the department to mark the motor vehicle record of a vehicle owner who is delinquent in the payment of a civil penalty assessed for a violation of Transportation Code, Chapter 707. Once the record is marked, the county tax assessor-collector may refuse to renew the motor vehicle registration for that vehicle until the local authority requests that the mark be removed. The amendment implements the enforcement authority provided by the legislature under Senate Bill 1119. Subsequent subsection (j) is redesignated accordingly.
Amendment to §17.22(j), Refusal to register vehicle in certain counties, more clearly explains that under Transportation Code, §502.185, a county may contract with the department to mark the motor vehicle record of a vehicle owner who has failed to pay for a fine, fee, or tax that is past due to the county. This amendment is necessary to better explain the process of enforcing county fines, fees, or taxes that are past due.
Section 17.22 is further amended by reformatting the current language regarding procedural aspects of notating the motor vehicle record to new subsection (k). The language sets out terms that will be included in each contract. This change allows the procedural requirements to apply to all three types of registration refusal contracts to better assist entities that may contract with the department under Transportation Code §502.185, Transportation Code, §702.003, or Transportation Code, §707.017.
Amendments to §17.30(d)(1)(B) delete language regarding Five-year Apportioned Trailer License Plates and redesignate subsequent clauses. The department has not issued Five-year Apportioned Trailer license plates since 2003 as they were rendered unnecessary by the elimination of use taxes charged by a few states. Also eliminated is the provision that Five-year Token license plates are only issued for semitrailers operating intrastate. Prior to 2003, the department required a truck with apportioned license plates to have five year apportioned license plates on the trailer. However, to better serve operators the department now allows semitrailers being operated interstate or intrastate to display Five-year Token Trailer license plates. Additionally, the requirement that a person own a minimum of 50 semitrailers to be issued Five-year Token Trailer license plates is deleted as required by House Bill 2992.
Amendments to §17.68(d), Accompanying documentation, remove the requirement that the rebuilt affidavit in support of an application for a certificate of title for a rebuilt salvage motor vehicle be notarized. This change makes the provision consistent with Transportation Code, §502.156. The amendments also revise the language concerning the statement that is required to be given by the applicant for a title for a rebuilt vehicle. This revision is intended to make that language easier to understand. Finally, the amendments add a requirement for a statement from the rebuilder that all component parts used in the rebuilt vehicle were obtained legally. This statement will assist the department with the enforcement and administration of Transportation Code, Chapter 502, and Occupations Code, Chapter 2302. Subparagraphs are relettered accordingly.
Amendments to §17.73(b), Initial application, add paragraphs (1)(L), (2)(A)(xi), and (3)(J), to require that an application for a salvage vehicle dealer license submitted by a person intending to engage in business as an individual, a corporation, or a partnership include a legible copy of each applicant's driver's license. Occasionally, a criminal background check will return information on more than one person with the same name. The inclusion of each applicant's driver's license with the application will help the department distinguish the applicant's criminal background information from that of another person. Subsequent subparagraphs and clauses are redesignated accordingly.
Amendments to §17.81, Denial, Suspension, or Revocation, add subsection (a)(2), which provides that the department will deny a salvage vehicle dealer or agent license if the applicant makes a false statement or material misrepresentation on an application and changes subsection (b)(14) to allow the department to revoke or suspend such a license if a dealer or agent makes a false statement in a renewal application or other information filed with the department. The addition and change are made to implement the authority granted by House Bill 1168 and Occupations Code, §2302.108, which authorize the department to take disciplinary action in response to a false statement or serious misrepresentation made in connection with an application for or renewal of a salvage vehicle dealer or agent license.
Amendment to 17.81(b)(16) adds "Occupations Code, Chapter 2302" to advise that a violation of that chapter constitutes a reason for suspension or revocation of a salvage vehicle dealers' license.
As required by Senate Bill 228, amendments to §17.81(c), Suspension or refusal to renew due to failure to pay court ordered child support, add that the department, in addition to suspension, will refuse to renew a salvage vehicle dealer license if the department is notified that the license holder has failed to pay child support.
Other amendments to §17.81 are made to reference section titles not previously detailed.
COMMENTS
Comments on the proposed amendments were received from the Texas Automobile Dealers Association and Texas Independent Automobile Dealers Association.
Comment: Both commenters requested §17.22 be clarified regarding the county tax assessor-collector's ability to refuse registration. They specified that Family Code, §232.0022, refers to "suspension and nonrenewal of motor vehicle registration" and §17.22 directs that the county tax assessor-collector's shall refuse motor vehicle registration.
Response: The department agrees Family Code, §232.0022 does not authorize refusal of all registration. Section 17.22(d)(6) does not direct the counties to refuse all registration but only to refuse renewal of registration in accordance with Family Code, §232.0135. For clarification, §17.22(d)(6) has been reorganized and revised to clarify that subsection (d)(6) applies only to the child support obligor's registration renewal.
Comment: Both commenters requested clarification be added to §17.22 that specifies that the suspension and nonrenewal of motor vehicle registration does not apply to encumbering, transfer, sale, purchase, or registration of a motor vehicle by a motor vehicle dealer as provided by Family Code, §232.0022.
Response: Section 17.22(d)(6) relates solely to refusal to renew a child support obligor's registration and not to refuse title transactions. The limitation regarding the encumbering or transfer of the title of a motor vehicle, or the sale, purchase, or registration of a motor vehicle by a motor vehicle dealer is clear in Family Code, §232.0022 and therefore, is not restated.
Comment: One commenter requested §17.22 be amended to address the provisions of Transportation Code, §707.013 relating to rebuttal of the presumption of ownership for vehicles owned by a person selling, renting, or leasing motor vehicles or by a person not named in the notice of violation.
Response: The department rules do not address the rebuttable presumption of ownership for vehicles owned by a person selling, renting, or leasing motor vehicles or by a person not named in the notice of violation because the Transportation Code does not give the department authority to accept a rebuttal. Pursuant to Transportation Code, §707.013(c), such rebuttals may be made only to the local authority alleging the violation or to the entity that operates the traffic signal enforcement program.
Comment: One commenter requested the rules describe the remark language that will be included on a motor vehicle record for delinquent child support, enforcement of traffic warrant, traffic signal violation, and failure to pay fine, fee, or tax.
Response: Remarks placed on motor vehicle records are not described in the rules because they provide the department internal guidance and are subject to frequent change. The inclusion of remark language in the rule would not set forth the nature or requirements for external department procedures.
Comment: One commenter requested the rules include clarification and information regarding the method used to clear a motor vehicle record and the length of time for a record to be cleared after a person has made payment for delinquent child support, a traffic warrant, traffic signal violations, and fines, fees, or tax that are past due.
Response: The department will clear a motor vehicle record as soon as reasonably practicable after it receives a proper request for clearance. If a clearance request is electronically submitted to the department the denial flag will generally be cleared from the motor vehicle record over-night. The length of time it takes to clear a denial flag from a motor vehicle record after payment has been made is largely determined by the length of time it takes the entity that requested the denial flag to submit a removal request to the department. The department will not remove a denial flag until the removal request is submitted. No change has been made to the rule in response to the comment.
Subchapter B. MOTOR VEHICLE REGISTRATION
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, §501.131, which allows the department to adopt rules to administer Transportation Code, Chapter 501; Occupations Code, §2302.051, which authorizes the department to adopt rules governing the licensing of salvage vehicle dealers; and Occupations Code, §2302.108, which authorizes the commission to establish the grounds for taking disciplinary actions relating to a salvage dealer license.
CROSS REFERENCE TO STATUTE
Family Code, §232.0022, and §232.0135, Government Code, §2005.052, Occupations Code, §2302.051, and §2302.108, Transportation Code, §§501.100, 501.131, 502.156, 502.167, and 707.017.
§17.22.Motor Vehicle Registration.
(a) Registration. Unless otherwise exempted by law or this chapter, a vehicle to be used on the public highways of this state must be registered in accordance with Transportation Code, Chapter 502 and the provisions of this section. Transportation Code, Chapter 501, Subchapter E and Subchapter D of this chapter prohibit registration of a vehicle whose owner has been issued a salvage or nonrepairable vehicle title. These vehicles may not be operated on a public roadway.
(b) Initial application for vehicle registration.
(1) An applicant for initial vehicle registration must file an application on a form prescribed by the department. The form will at a minimum require:
(A) the signature of the owner;
(B) the motor vehicle description, including, but not limited to, the motor vehicle's year, make, model, vehicle identification number, body style, manufacturer's rated carrying capacity in tons for commercial motor vehicles, and empty weight;
(C) the license plate number;
(D) the odometer reading, or the word "exempt" if the motor vehicle is exempt from federal and state odometer disclosure requirements;
(E) the name and complete address of the applicant; and
(F) the name, mailing address, and date of any liens.
(2) The application must be accompanied by the following documents:
(A) evidence of vehicle ownership as specified in Transportation Code, §501.030, unless the vehicle has been issued a nonrepairable or salvage vehicle title in accordance with Transportation Code, Chapter 501, Subchapter D;
(B) registration fees prescribed by law;
(C) any local fees or other fees prescribed by law and collected in conjunction with registering a vehicle;
(D) evidence of financial responsibility required by Transportation Code, §502.153, unless otherwise exempted by law; and
(E) any other documents or fees required by law.
(3) An initial application for registration must be filed with the tax assessor-collector of the county in which the owner resides, except that an application for registration as a prerequisite to filing an application for certificate of title may also be filed with the county tax assessor-collector in the county in which the motor vehicle is purchased or encumbered.
(4) The recorded owner of a vehicle that was last registered or titled in another jurisdiction and is subject to registration in this state may apply for registration if the owner cannot or does not wish to relinquish the negotiable out-of-state evidence of ownership to obtain a Texas certificate of title. On receipt of a form prescribed by the department and payment of the statutory fee for a title application and any other applicable fees, the department will issue a registration receipt to the applicant.
(A) Registration receipt. The receipt issued at the time of application may serve as proof of registration and evidences title to a motor vehicle for registration purposes only, but may not be used to transfer any interest or ownership in a motor vehicle or to establish a lien.
(B) Information to be included on the form. The form will include the:
(i) out-of-state title number, if applicable;
(ii) out-of-state license plate number, if applicable;
(iii) state or country that issued the out-of-state title or license plate;
(iv) lienholder name and address as shown on the out-of-state evidence, if applicable;
(v) statement that negotiable evidence of ownership is not being surrendered; and
(vi) signature of the applicant or authorized agent of the applicant.
(C) Accompanying Documentation. An application for registration under this paragraph must be supported, at a minimum, by:
(i) a completed application for registration, as specified in paragraph (1) of this subsection;
(ii) presentation, but not surrender of, evidence from another jurisdiction demonstrating that legal evidence of ownership has been issued to the applicant as the motor vehicle's owner, such as a validated title or registration verification from the other jurisdiction, a registration receipt, a non-negotiable title, or written verification from the other jurisdiction; and
(iii) any other documents or fees required by law.
(D) Assignment. In instances in which the title or registration receipt is assigned to the applicant, an application for registration purposes only will not be processed. The applicant must apply for a certificate of title under Transportation Code, Chapter 501.
(c) Vehicle registration insignia.
(1) On receipt of a complete initial application for registration with the accompanying documents and fees, the department will issue vehicle registration insignia to be displayed on the vehicle for which the registration was issued for the current registration period.
(A) If the vehicle has a windshield, the symbol, tab, or other device prescribed by and issued by the department shall be attached to the inside lower left corner of the vehicle's front windshield within six inches of the vehicle inspection sticker in a manner that will not obstruct the vision of the driver.
(B) If the vehicle has no windshield, the symbol, tab, or other device prescribed by and issued by the department shall be attached to the rear license plate.
(C) If the vehicle is registered as a Former Military Vehicle as prescribed by Transportation Code, §504.502, the vehicle's registration number shall be displayed instead of displaying a symbol, tab, or license plate.
(i) Former Military Vehicle registration numbers shall be displayed on a prominent location on the vehicle in numbers and letters of at least two inches in height.
(ii) To the extent possible, the location and design of the Former Military Vehicle registration number must conform to the vehicle's original military registration number.
(2) Unless otherwise prescribed by law, each vehicle registered under this subchapter must display two license plates, one at the front and one at the rear of the vehicle.
(3) In accordance with Transportation Code, §502.052 and §502.180(e), the department will cancel or not issue any license plate containing an alpha-numeric sequence that meets one or more of the following criteria.
(A) The alpha-numeric sequence conflicts with the department's current or proposed regular license plate numbering system.
(B) The executive director finds that the alpha-numeric pattern may be considered objectionable or misleading by one or more members of the public for any reason, including that the pattern may be viewed as having, directly or indirectly:
(i) a sexual connotation;
(ii) a vulgarity;
(iii) one or more words that are not generally considered appropriate for all audiences, including children;
(iv) a derogatory reference to any individual or group;
(v) a reference to alcohol or to illegal activities or substances; or
(vi) a misrepresentation of a law enforcement or other governmental entity.
(C) The alpha-numeric sequence is currently issued to another owner.
(4) The provisions of paragraph (1) of this subsection do not apply to vehicles registered with annual license plates issued by the department.
(d) Vehicle registration renewal.
(1) To renew vehicle registration, a vehicle owner must apply, prior to the expiration of the vehicle's registration, to the tax assessor-collector of the county in which the owner resides.
(2) The department will mail a license plate renewal notice, indicating the proper registration fee and the month and year the registration expires, to each vehicle owner approximately six to eight weeks prior to the expiration of the vehicle's registration.
(3) The license plate renewal notice should be returned by the vehicle owner to the appropriate county tax assessor-collector or to the tax assessor-collector's deputy, either in person or by mail. The registration renewal notice may be used in connection with the renewal of registration at selected county tax assessor-collector offices via the internet. The renewal notice must be accompanied by the following documents and fees:
(A) registration renewal fees prescribed by law;
(B) any local fees or other fees prescribed by law and collected in conjunction with registration renewal; and
(C) evidence of financial responsibility required by Transportation Code, §502.153, unless otherwise exempted by law.
(4) If a renewal notice is lost, destroyed, or not received by the vehicle owner, the vehicle may be registered if the owner presents personal identification acceptable to the tax assessor-collector. Failure to receive the notice does not relieve the owner of the responsibility to renew the vehicle's registration.
(5) Renewal of expired vehicle registrations.
(A) In accordance with Transportation Code, §502.407, a vehicle with an expired registration may not be operated on the highways of the state after the fifth working day after the date a vehicle registration expires.
(B) A 20% delinquency penalty is due when registration is renewed if the owner has been arrested or cited for operating the vehicle without valid registration.
(C) If the county tax assessor-collector determines that a registrant has a valid reason for being delinquent in registration, the vehicle owner will be required to pay for twelve months' registration. Renewal will establish a new registration expiration month that will end on the last day of the eleventh month following the month of registration renewal.
(D) If the county tax assessor-collector determines that a registrant does not have a valid reason for being delinquent in registration, the full annual fee will be collected and the vehicle registration expiration month will remain the same.
(E) If a vehicle is registered in accordance with Transportation Code, §§502.164, 502.167, 502.188, 502.203, 504.315, 504.401, 504.405, 504.411, or 504.505, and if the vehicle's registration is renewed more than one month after expiration of the previous registration, the registration fee will be prorated.
(F) Any delinquent registration submitted directly to the department for processing will be evaluated to verify the reason for delinquency. If the department determines that a registrant has a valid reason for being delinquent in registration, the vehicle owner will be required to pay for 12 months' registration. Renewal will establish a new registration expiration month that will end on the last day of the 11th month following the month of registration. If the department determines that a registrant does not have a valid reason for being delinquent in registration, the full annual fee will be collected and the vehicle registration expiration month will remain the same. Valid reasons for delinquency include those reasons set forth in Transportation Code, §502.176(e).
(6) Refusal to renew registration for delinquent child support.
(A) Placement of denial flag. On receipt of a final order issued under Family Code, Chapter 232 for the suspension or nonrenewal of a motor vehicle registration, the department will place a registration denial flag on the motor vehicle record of the child support obligor as reported by the final order.
(B) Refusal to renew registration. While a motor vehicle record is flagged, the county tax-assessor collector shall refuse to renew the registration of the associated motor vehicle.
(C) Removal of denial flag. On receipt of an order issued under Family Code, Chapter 232 vacating or staying an order for the suspension or nonrenewal of a motor vehicle registration, the department will remove the registration denial flag from the motor vehicle record.
(7) License plate reissuance and recall program.
(A) The county tax assessor-collectors are authorized to issue new multi-year license plates at no additional charge on request by the owner at the time of registration renewal, provided the current plates are over five years old.
(B) The county tax assessor-collectors shall issue new multi-year license plates at no additional charge at the time of registration renewal provided the current plates are over eight years old.
(e) Replacement of license plates, symbols, tabs, and other devices.
(1) When a license plate, symbol, tab, or other registration device is lost, stolen, or mutilated, a replacement may be obtained from any county tax assessor-collector as prescribed by law.
(2) To obtain a replacement, the owner must properly execute an affidavit containing the vehicle description, the original license plate number, and a sworn statement that the license plate, symbol, tab, or other registration device furnished for the described vehicle has been lost, stolen, or mutilated, and will not be used on any other vehicle.
(3) If the owner remains in possession of any part of the lost, stolen, or mutilated license plate, symbol, tab, or other registration device, that remaining part must be removed and surrendered to the department on issuance of the replacement and request by the county tax assessor-collector.
(f) Out-of-state vehicles. A vehicle brought to Texas from out-of-state must be registered within 30 days of the date on which the owner establishes residence or secures gainful employment, except as provided by Transportation Code, §502.0025. Accompanying a completed application, an applicant must provide:
(1) an application for certificate of title as required by Transportation Code, Chapter 501, if the vehicle to be registered has not been previously titled in this state; and
(2) any other documents or fees required by law.
(g) The owner of an electric personal assistive mobility device, as defined by Transportation Code, §551.201, is not required to register it. The device may only be operated on a residential street, roadway, or public highway in accordance with Transportation Code, §551.202.
(h) Enforcement of traffic warrant. A municipality may enter into a contract with the department under Government Code, Chapter 791 to indicate in the state's motor vehicle records that the owner of the vehicle is a person for whom a warrant of arrest is outstanding for failure to appear or who has failed to pay a fine on a complaint involving a violation of a traffic law. In accordance with Transportation Code, §702.003, a county tax assessor collector may refuse to register a motor vehicle if such a failure is indicated in motor vehicle record for that motor vehicle. A municipality is responsible for obtaining the agreement of the county in which the municipality is located to refuse to register motor vehicles for failure to pay civil penalties imposed by the municipality.
(i) Refusal to register due to traffic signal violation. A local authority, as defined in Transportation Code, §541.002, that operates a traffic signal enforcement program authorized under Transportation Code, Chapter 707 may enter into a contract with the department under Government Code, Chapter 791 to indicate in the state's motor vehicle records that the owner of a motor vehicle has failed to pay the civil penalty for a violation of the local authority's traffic signal enforcement system involving that motor vehicle. In accordance with Transportation Code, §707.017, a county tax assessor-collector may refuse to register a motor vehicle if such a failure is indicated in the motor vehicle record for that motor vehicle. The local authority is responsible for obtaining the agreement of the county in which the local authority is located to refuse to register motor vehicles for failure to pay civil penalties imposed by the local authority.
(j) Refusal to register vehicle in certain counties. A county may enter into a contract with the department under Government Code, Chapter 791 to indicate in the state's motor vehicle records that the owner of the vehicle has failed to pay for a fine, fee, or tax that is past due. In accordance with Transportation Code, §502.185, a county tax assessor-collector may refuse to register a motor vehicle if such a failure is indicated in motor vehicle record for that motor vehicle.
(k) Record notation. A contract between the department and a county, municipality, or local authority entered into under Transportation Code, §502.185, Transportation Code, §702.003, or Transportation Code, §707.017 will contain the terms set out in this subsection.
(1) To place or remove a registration denial flag on a vehicle record, the contracting entity must submit a magnetic tape or other acceptable submission medium as determined by the department in a format prescribed by the department.
(2) The information submitted by the contracting entity will include, at a minimum, the vehicle identification number and the license plate number of the affected vehicle.
(3) If the contracting entity data submission contains bad or corrupted data, the submission medium will be returned to the contracting entity with no further action by the department.
(4) The magnetic tape or other submission medium must be submitted to the department from a single source within the contracting entity.
(5) The submission of a magnetic tape or other submission medium to the department by a contracting entity constitutes a certification by that entity that it has complied with all applicable laws.
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 February 29, 2008.
TRD-200801221
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: March 20, 2008
Proposal publication date: November 30, 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 (commission) with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §501.131, which allows the department to adopt rules to administer Transportation Code, Chapter 501; Occupations Code, §2302.051, which authorizes the department to adopt rules governing the licensing of salvage vehicle dealers; and Occupations Code, §2302.108, which authorizes the commission to establish the grounds for taking disciplinary actions relating to a salvage dealer license.
CROSS REFERENCE TO STATUTE
Family Code, §232.0022, and §232.0135, Government Code, §2005.052, Occupations Code, §2302.051, and §2302.108, Transportation Code, §§501.100, 501.131, 502.156, 502.167, and 707.017.
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 February 29, 2008.
TRD-200801222
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: March 20, 2008
Proposal publication date: November 30, 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 (commission) with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §501.131, which allows the department to adopt rules to administer Transportation Code, Chapter 501; Occupations Code, §2302.051, which authorizes the department to adopt rules governing the licensing of salvage vehicle dealers; and Occupations Code, §2302.108, which authorizes the commission to establish the grounds for taking disciplinary actions relating to a salvage dealer license.
CROSS REFERENCE TO STATUTE
Family Code, §232.0022, and §232.0135, Government Code, §2005.052, Occupations Code, §2302.051, and §2302.108, Transportation Code, §§501.100, 501.131, 502.156, 502.167, and 707.017.
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 February 29, 2008.
TRD-200801223
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: March 20, 2008
Proposal publication date: November 30, 2007
For further information, please call: (512) 463-8683
The Texas Department of Transportation (department) adopts amendments to §21.142, concerning definitions; §21.150, concerning permits; §21.154, concerning lighting of signs; new §21.163, concerning electronic signs; amendments to §21.441, concerning permit for erection of off-premise sign; and §21.551 concerning prohibited signs. The effective date of these rules is June 1, 2008. The amendments to §§21.142, 21.150, 21.154, 21.441 and 21.551 are adopted without changes to the proposed text as published in the September 7, 2007, edition of the Texas Register (32 TexReg 6106) and will not be republished. New §21.163 is adopted with changes to the proposed text as published in the September 7, 2007, edition of the Texas Register (32 TexReg 6106).
EXPLANATION OF ADOPTED AMENDMENTS AND NEW SECTION
The purpose for amendments to §21.150 and §21.441 is to implement the provisions of House Bill 2944 (HB 2944), passed by the 80th Legislature in 2007. HB 2944 amends Transportation Code, §391.068, to provide that the commission may not issue a permit for a sign within the jurisdiction of a municipality with a population of more than 1.9 million that exercises its authority to regulate outdoor advertising, unless the municipality has first issued local permission for the sign.
The purpose for changes to §§21.142, 21.154, 21.551 and the addition of new 21.163 is to establish criteria to provide for local control and discretion over the regulation of electronic off-premise outdoor advertising signs which are limited to the corporate limits and controlled extra territorial jurisdiction of municipalities.
The primary responsibility of the department is to carry out the spirit and intent of the federal Highway Beautification Act while recognizing the fundamental right of the regulated industry to compete and pursue the business opportunities presented by the evolution of technology applicable to their particular area of free enterprise.
Amendments to §21.142, Definitions, define an electronic sign to be a sign, display, or device that changes its message by programmable electronic or mechanical processes.
House Bill 2944 amends Transportation Code, §391.068, to provide that the commission may not issue a permit for a sign within the jurisdiction of a municipality with a population of more than 1.9 million that exercises its authority to regulate outdoor advertising, unless the municipality has issued a permit for the sign. To comply with HB 2944, amendments to §21.150, Permits, require that an application for a permit for a sign along a regulated highway that is to be located within the jurisdiction of a municipality with a population of more than 1.9 million be accompanied by a certified copy of the permit issued by the municipality.
Amendments to §21.154, Lighting and Movement of Signs, delete the reference to LED (light-emitting diode) screen and other video displays to authorize the use of LED displays as electronic signs.
New §21.163 regulates the use of electronic signs. The rules establish minimum criteria to limit eligibility of electronic signs and to minimize the distractive effect of commercial electronic variable message signs (CEVMS) to enhance safety on highways.
New §21.163(a), Electronic images, sets forth the department's determination that the use of an electronic image is not the use of flashing, intermittent, or moving light and, therefore, does not violate §21.154 or any other rule, regulation, or standard promulgated by the department or any agreement between the department and the Secretary of Transportation of the United States that prohibits the use of such technology. To comply with federal requirements, and with respect to the prohibition on mobile signs, in order to prevent temporary electronic signs, new §21.163(b), Prohibitions, prohibits the use of flashing, intermittent, or moving lights to illuminate signs; prohibits signs from displaying animated, moving video, or scrolling advertising; prohibits signs that consist of a static image projected upon a stationary object; and prohibits an electronic sign from being located on a truck or trailer.
New §21.163(c), Location of electronic signs, describes location requirements for electronic signs to provide control of electronic signs at the local government level.
New §21.163(d), Upgrading an electronic sign, prohibits the addition of lighting to a nonconforming sign and requires a permit to convert a conforming sign to an electronic sign.
To insure the safety of the traveling public and to insure compliance with federal requirements, new §21.163(e), Eligible electronic signs, details criteria for electronic signs, including visibility and display requirements.
New §21.163(f), Safety, describes requirements necessary for automatic adjustment to the sign and default settings in the event of possible malfunction and concerning brightness levels to insure the safety of the traveling public.
New §21.163(g), Owner responsibility, lists owner responsibilities including the requirement that owners coordinate with emergency officials and provide contact information to the department in case of electronic sign malfunction.
New §21.163(h), Granting permits, provides for permit requirements.
New §21.163(i), Conflicts with subchapter, provides that §21.163 controls in the case of a conflict with other provisions of the subchapter.
House Bill 2944 amends Transportation Code, §394.021 and §394.022, to provide that the commission may not issue a permit for a sign within the jurisdiction of a municipality with a population of more than 1.9 million exercising its authority to regulate off-premises signs unless the municipality has issued a permit for the sign. To comply with HB 2944, §21.441, Permit for Erection of Off-Premise Sign, requires that an application for a permit for an off-premise sign that is visible from the main-traveled way of a rural road and that is located within the jurisdiction of a municipality with a population of more than 1.9 million, must be accompanied by a certified copy of the permit issued by the municipality.
To clarify that electronic signs may not be located along rural roads, §21.551, Prohibited Signs, adds requirements prohibiting animated or scrolling displays and digital signs.
COMMENTS
The Texas Transportation Commission (commission) proposed amendments and the new section on August 23, 2007. During the public-comment period, which ended December 6, 2007, the department received approximately 800 comments regarding the proposed amendments to §§21.142, 21.150, 21.154, new 21.163, and amendments to §21.441, and §21.551. Recognizing the level of interest on both sides of the matter, the rules were made available for public comment for 90 days, rather than the customary 30 days. The comments were sub-divided by respondent affiliation and indexed under these general categories: general public, regulated industry, public officials, and association and interest groups.
Pursuant to the Administrative Procedures Act, Government Code, Chapter 2001, the department conducted a public hearing to receive comments concerning the proposed rules. The public hearing was held at 9 a.m. on Wednesday, November 28, 2007, in the first-floor hearing room of the Dewitt C. Greer State Highway Building in Austin, Texas. Twenty-two people provided written and oral testimony during the public hearing. A summary of the comments and the department's responses follow.
COMMENT:
During the public hearing, Lee Vela, president of Outdoor Advertising Association of Texas, provided testimony and made general reference to a recent safety study by Tantala Associates Consulting Engineers that concluded no correlation demonstrating a statistically valid relationship between vehicular accidents and the presence of billboards including conventional and digital billboards. Mr. Vela also made general reference to a Virginia Tech Transportation Institute study that found digital displays to be "safety neutral" in design and operation.
Mr. Vela offered into the record Exhibit #3, a copy of the September 25, 2007, memo from FHWA to the department and testified that it established digital displays do not violate rules set out in the Highway Beautification Act. Mr. Vela concluded his comments with observations of potential benefits to local law-enforcement agencies and emergency-message handling to reach the public for use with AMBER Alerts and other emergency and evacuation management situations.
RESPONSE:
These comments offered on behalf of the industry as represented by the Outdoor Advertising Association of Texas present a general position in favor of the rules, as proposed, with no specific recommendations for revision. The testimony is noted and no additional action affecting the substance of these rules as proposed is made as a result of these comments.
COMMENT:
During the public hearing, Blake Custer, president of Clear Channel Outdoor, San Antonio Division, provided testimony that included the following four specific comments:
(1) Mr. Custer commented that the structure of subsection (c) of §21.163 leads to the interpretation that the rule is precluding municipalities from allowing electronic displays on roads other than regulated highways. Clear Channel offered the following revision such that the first sentence would read, "Electronic signs may be located within corporate limits."
(2) Mr. Custer proposes to revise §21.163(c)(2) by eliminating the 1,500 foot spacing criteria for the relocation of an electronic sign in favor of the existing spacing criteria included under §21.160, Relocation, of the existing rules.
(3) Mr. Custer commented that the proposed subsection (d) of §21.163 blurs the application of the non-conforming designation. Clear Channel offered the following revision such that §21.163(d)(2) would read as "a structure on a legally conforming location as determined by department rule may be modified to an electronic sign if a new permit is obtained."
(4) Mr. Custer commented that the intent of subsection (e) of §21.163 is unclear. The use of electronic displays gives Texas businesses the flexibility to tailor their messages to consumers. Mr. Custer offered a proposed revision to remove paragraph (4), questioning whether there is a compelling reason to control the number of different displays per cycle.
RESPONSE:
(1) Given that these rules apply only to regulated highways, the proposed revision is a matter of editorial preference and has no affect on the intent or meaning of the rule as proposed. These rules are specific to regulated highways and do not change any current law regarding a city's authority to control signs along city streets. For the department to include language regarding what can and cannot be located along a city street would be beyond what these rules are intended and authorized to regulate. No change to the section is made as a result of this comment.
(2) The 1,500 foot spacing criteria for relocation of an electronic sign is intended to decrease the distractive effect of adjacent electronic signs and enhance the safety of the traveling public. The testimony is noted and §21.163(c)(2) is revised to clarify that the 1,500 foot spacing criteria applies to spacing off-premise electronic signs and therefore the spacing criteria in §21.160 will apply to relocations adjacent to non-electronic off-premise signs.
(3) The distractive effect of multiple electronic sign displays is appropriately mitigated thru control of the minimum allowable duration for an individual message display (proposed as a minimum eight seconds in these rules). The department concurs with the comment that controlling the number of displays per cycle provides no safety benefit and paragraph (4) of §21.163(e) as proposed is removed.
(4) The department acknowledges that the primary mechanism for effective control of outdoor advertising is the elimination of non-conforming signs over time. It is the intent of the rules as proposed to prohibit any consideration for the conversion of a non-conforming sign to an electronic display. Paragraph (2) of §21.163(d) is revised to provide that "a legally conforming sign may be modified to an electronic sign if a new permit for the electronic sign is obtained from both the municipality and the department."
COMMENT:
During the public hearing, Don Riley, with Lamar Advertising, provided testimony and cited a Virginia Tech study. Mr. Riley offered into the record Exhibit #6, the study titled "Driving Performance and Digital Billboards." Mr. Riley stated that the referenced study concluded digital billboards to be "safety-neutral." Mr. Riley also submitted letters that conventional billboards have not been shown to cause traffic accidents or change driver behavior. Mr. Riley concluded his comments supporting the AMBER Alert and Silver Alert systems for the elderly.
RESPONSE:
These comments offered on behalf of the industry as represented by Lamar Advertising present a general position in favor of the rules, as proposed, with no specific recommendations for revision. The testimony is noted and no additional action affecting the substance of these rules as proposed is made as a result of these comments.
COMMENT:
During the public hearing, Michael Tantala, P.E., with Tantala Associates Consulting Engineers, presented testimony and submitted a study he authored on "An Examination of the Relationship between Signs and Traffic Safety". The study concluded that digital billboards have no statistically significant relationship with occurrence of accidents. The data showed no increase in accident rates.
RESPONSE:
These comments offered on behalf of Tantala Associates Consulting Engineers present a general position in favor of the rules, as proposed, with no specific recommendations for revision. The testimony is noted and no additional action affecting the substance of these rules as proposed is made as a result of these comments.
COMMENT:
The Federal Highway Administration (FHWA) urged the department to strongly consider the following:
(1) Interval of Change/Spacing - The timing of a sign change should not be such that a driver traveling at the posted speed limit on a particular route would be exposed to each sign encountered being in transition during his/her trip.
(2) Spacing - Specific spacing for electronic signs is not addressed in the proposed language with the exception of relocated signs. It appears spacing for electronic digital signs is the same spacing as currently required in Texas Administrative Code, Title 43, §21.153. FHWA Texas Division is requesting the department reconsider the spacing on non-freeway primary routes in incorporated municipalities (Texas Administrative Code, Title 43, §21.153(f)), and increase the spacing requirement for changeable electronic variable-message signs (CEVMS). Some states currently allowing CEVMS increased the spacing requirement by doubling the spacing requirement for this category of sign, and "we [FHWA] suggest you do the same."
(3) The word "cycle" should be defined for greater clarity. The word cycle is used at §21.163(e)(4).
(4) Additionally, FHWA Texas Division would like the department to track accident rates in areas where new changeable message signs occur on controlled routes as a result of the new regulation. The purpose for collecting the data is to determine the safety impact of the CEVMS on the motoring public.
(5) With reference to the Highway Beautification Act, FHWA Texas Division comments: "The use of frontage roads in Texas provides an opportunity for on-premise electronic signs to be in close proximity to Interstate and Primary routes. Newly erected off-premise signs in close proximity to on-premise signs may have the potential to cause distraction and a safety concern. FHWA would like the department to consider this issue during this regulation process and how the department could implement safeguards for this potential hazard." Lastly, FHWA Texas Division cautions, "In the near future FHWA at the national level will be conducting a research effort to study the potential safety effects of electronic billboards on driver attention and distraction. As a result of this research, revisions to the department regulations may be required."
RESPONSE:
(1) The distractive effect of multiple electronic sign displays is appropriately mitigated through control of the minimum allowable duration for an individual message display (proposed as a minimum eight seconds in these rules). The department concurs with the comment that the timing of a sign change should not be such that a driver traveling at the posted speed limit on a particular route would be exposed to each sign encountered being in transition during the trip. Section 21.163(g)(2) adequately provides a means to remedy this situation, should it occur, by requiring identification of an emergency point of contact with the ability to adjust the sign in the event of this type of malfunction. No change to this section is made as a result of these comments.
(2) The department agrees that spacing of electronic signs should not be less restrictive than the minimum standard established under the Federal-State Agreement. Section 21.153, Spacing of Signs, imposes a stricter standard for spacing that is three times (300 feet) the minimum established in the Federal-State Agreement (100 feet). FHWA's comment is noted, but in lieu of further action on the rules as proposed, the department will apply the existing stricter spacing standard and defer to more restrictive standards as may be required by municipalities.
(3) The department agrees with the need for clarification of the word "cycle" or its elimination from the rules. The department has eliminated paragraph (4) of §21.163(e), which contemplated the establishment of a maximum number of advertising messages per cycle, and therefore, the definition is not needed and further change is not made.
(4) The department agrees with the need for tracking data for accidents in locations in which CEVMS are erected. A contract with an independent engineering firm should be obtained that will monitor and compare traffic accidents before and after the construction of CEVMS for a period of three years. As FHWA will be conducting research to study the potential safety effects of electronic billboards on driver attention and distraction, which may result in revisions to department rules, the department will comply with any required revisions based on the FHWA safety study. No change is made as a result of this comment.
(5) The department agrees with the general concern about distractive effects of exempt on-premise signs. Monitoring of traffic accidents that occur near electronic signs will provide the necessary statistical foundation to revise the rules as necessary. No change is made as a result of this comment.
COMMENT:
Senator John Carona, chairman of the Senate Committee on Transportation and Homeland Security, commented by written reply that there is a fear that the signs violate the Highway Beautification Act and would result in a 10 percent reduction in federal funds.
RESPONSE:
The department's primary responsibility is to enforce federal and state highway-beautification laws in strict compliance with the spirit and intent as determined by our federal partners with the FHWA. The FHWA has commented specifically to verify that these rules, as proposed, do not violate the state-federal agreement and therefore do not subject Texas federal transportation funds to the risk of being sanctioned for noncompliance.
COMMENT:
Approximately 50 form letters from the general public were received opposing LED billboards in Texas: "Thank you for listening to my concerns. I am very opposed to LED billboards in Texas and hope you will help stop them from coming to my community."
RESPONSE:
The commenters offered a general opinion in opposition to the rules, as proposed, with no further recommendation for substantive revision. As previously stated, the department is considering adoption of the rules to provide for local control and discretion over the regulation of electronic off-premise outdoor advertising signs. The comments are noted and no additional action affecting the substance of these rules as proposed is made as a result of these comments.
COMMENTS:
Approximately 50 form letters from the general public were received in favor of LED billboards stating that "I do not work in the billboard business, but I read and use them everyday to find where to shop, where to buy gas or for public service messages so important to our community."
RESPONSE:
The commenters offered a general opinion in favor of the rules, as proposed, with no further recommendation for substantive revision. The comments are noted and no additional action affecting the substance of these rules as proposed is made as a result of these comments.
COMMENTS:
Approximately 350 personal letters were received from the general public. The majority of those who commented from the general public urged a "no" vote by the Commission.
RESPONSE:
The commenters offered a general opinion in opposition to the rules, as proposed, with no further recommendation for substantive revision. As previously stated, the department is considering adoption of the rules to provide for local control and discretion over the regulation of electronic off-premise outdoor advertising signs. The comments are noted and no additional action affecting the substance of these rules as proposed is made as a result of these comments.
COMMENT:
One hundred and forty-five form letters were received from sign-industry employees "in favor" of the proposed rule amendments. A common comment made in these letters is: "Everyday our business helps to stimulate the economy with the services we supply ... billboard advertising."
RESPONSE:
The commenters offered a general opinion in favor of the rules, as proposed, with no further recommendation for substantive revision. The comments are noted and no additional action affecting the substance of these rules as proposed is made as a result of these comments.
COMMENTS:
Ten form letters were received from Lamar Advertising "in favor" of the proposed rule amendments. The regulated industry stated, "I am a Business Operator who would like to be given the opportunity to at least be offered the availability to Electronic Billboard usage."
RESPONSE:
The commenters offered a general opinion in favor of the rules, as proposed, with no further recommendation for substantive revision. The comments are noted and no additional action affecting the substance of these rules as proposed is made as a result of these comments.
COMMENTS:
Approximately 50 form letters were received from Clear Channel "in favor" of the proposed rule amendments. The regulated industry stated, "I support the proposed rule changes that would allow Texas cities to have electronic or digital billboards within their jurisdiction because everyday billboard advertising helps stimulate the economy."
RESPONSE:
The commenters offered a general opinion in favor of the rules, as proposed, with no further recommendation for substantive revision. The comments are noted and no additional action affecting the substance of these rules as proposed is made as a result of these comments.
COMMENTS:
Approximately 50 letters "in favor" of the proposed rule changes were received from the following businesses: Ad Impressions, Inc., Alamo Outdoor Signs, CBS Outdoor, Clear Channel, Lamar Advertising, Lopez Negrete Communications, Media Strategies, Outdoor Advertising Association of America, Inc., and RMG Outdoor Incorporated.
RESPONSE:
The commenters offered a general opinion in favor of the rules, as proposed, with no further recommendation for substantive revision. The comments are noted and no additional action affecting the substance of these rules as proposed is made as a result of these comments.
COMMENT:
The President of Outdoor Advertising Association of Texas, Lee Vela, submitted the following written comments to proposed new §21.163.
(1) Section 21.163(c)(1), Location of Electronic Signs - The rule should be amended to reflect the division of jurisdiction. Change the first sentence to read "electronic signs may be located within the corporate limits."
(2) Section 21.163(c)(2), Location of Electronic Signs - Proposes eliminating as a method to minimize conflict between the industry and the department and to eliminate any unnecessary burden on taxpayers.
(3) Section 21.163(d)(2), Upgrading an Electronic Sign - Amend the rule to state, "a structure on a legally conforming location as determined by department rule may be modified to an electronic sign if a new permit is obtained."
(4) Section 21.163(e)(4), Eligible Electronic Signs - Remove this subsection. Should there be a compelling reason to control the number of messages.
(5) Section 21.163(g)(2), Owner Responsibilities - Subsection is cumulative and unnecessary. Move this subsection and relocate the requirement of the sign owner to provide contact information to subsection (g)(3).
(6) Section 21.163(g)(2), Owner Responsibilities - The time allowed for a sign company to respond to a departmental contact should be extended from one hour to 24 hours, as an adjustment (to intensity) would be made prior to the next evening.
RESPONSE:
(1) Given that these rules apply only to regulated highways, the proposed revision is a matter of editorial preference and has no affect on the intent or meaning of the rule as proposed. No change is made as a result of this comment.
(2) The 1,500 foot spacing criteria for relocation of an electronic sign is intended to decrease the distractive effect of adjacent electronic signs and enhance the safety of the traveling public. The comment is noted and §21.163 is revised to clarify that the 1,500 foot spacing criteria applies to spacing off-premise electronic signs and therefore the spacing criteria in §2l.160 will apply to relocations adjacent to non-electronic off-premise signs.
(3) The department acknowledges that the primary mechanism for effective control of outdoor advertising is the elimination of non-conforming signs over time. It is the intent of the rules as proposed to prohibit any consideration for the conversion of a non-conforming sign to an electronic display. Paragraph (2) of new §21.163(d), is revised to provide that "a legally conforming sign may be modified to an electronic sign if a new permit for the electronic sign is obtained from both the municipality and the department."
(4) The distractive effect of multiple electronic sign displays is appropriately mitigated through control of the minimum allowable duration for an individual message display (proposed as a minimum eight seconds in these rules). The department concurs with the comment that controlling the number of displays per cycle provides no safety benefit and paragraph (4) of §21.163(e) is removed.
(5) The department does not agree that paragraph (2) of §21.163(g) should be removed. Emergency contact information is essential for a prompt response and remediation of malfunctions in order to insure public safety.
(6) The department concurs with the comment and paragraph (3) of §21.163(g) is revised to provide for a 12-hour response time.
COMMENTS:
Richard H. Erickson, president of Southwest Media Exchange, opposes the proposed rule changes citing safety and distraction concerns, financial windfall for the regulated industry, with little or no benefit to the State of Texas and its citizens.
RESPONSE:
Mr. Erickson offered a general opinion in opposition to the rules, as proposed, with no further recommendation for substantive revision. As previously stated, the department is considering adoption of the rules to provide for local control and discretion over the regulation of electronic off-premise outdoor advertising signs. The comments are noted and no additional action affecting the substance of the rules as proposed is made as a result of the comment.
COMMENTS:
During the public-comment period, 19 comments were received from public officials. Public officials "in favor" of the proposed rule changes include state representatives Joseph Pickett (District 79), Dwayne Bohac (District 138), and Kevin Bailey (District 140), City of Plano Executive Director Frank F. Turner, and City of Victoria Chief of Police Bruce Ure. Their comments referenced safe and effective use of technology, AMBER/Silver alerts, emergency responses, support for local control, and the potential for economic catalyst in communities who choose to allow them.
RESPONSE:
Federal and state rules are constructed to defer to a stricter, local standard conditioned upon meeting the minimum federal standards. New §21.163 adequately establishes local authority to make stricter rules.
COMMENT:
Public officials submitting comments in opposition to the rules include Senate Committee on Transportation and Homeland Security Chairman John Carona, state representatives Rob Eissler (District 15), Eddie Rodriquez (District 51), and Patricia Harless (District 126 ); Travis County Judge Samuel T. Biscoe, Travis County Commissioner (Precinct 2) Sarah Eckhardt, Harris County Commissioner (Precinct 4) Jerry Eversole, Harris County Attorney Mike Stafford, Fort Worth Mayor Mike Moncrief, City South Management Authority Presiding Officer Ed Garza, and former Mayor of University Park Barbara Hitzelberger Wooten. Their concerns included safety and hazards, distractions, environmental damage, increased costs of highway construction, lighting, compliance with the federal HBA, threat of lost federal highway funds for failure to control outdoor advertising, honoring the memory of Lady Bird Johnson and her legacy of highway beautification, relocation costs, visual pollution, and delay in enacting the rules. Commenters expressed concerns that the cost of eminent domain would be adversely affected due to the increased cost of an electronic sign rather than a regular billboard.
RESPONSE:
The department's primary responsibility is to enforce federal and state highway-beautification laws in strict compliance with the spirit and intent as determined by our federal partners with the FHWA. The FHWA has commented specifically to verify that these rules, as proposed, do not violate the federal-state agreement and therefore do not subject Texas federal transportation funds to the risk of being sanctioned for noncompliance. The department is acting in a regulatory capacity to consider new technology that is being used in the industry and in other states. Eminent domain costs are comprised of numerous variables. The department will monitor whether electronic signs increase eminent domain costs and may make appropriate rule changes in the future as necessary to adequately address those costs.
COMMENT:
Harris County Attorney Mike Stafford expressed concern about the proposed rules with regard to increased condemnation costs, fairness to residents in unincorporated areas, the impact of billboards on costs of public-works projects, and support for local control to uphold community standards as established through city ordinances.
RESPONSE:
Federal and state rules are constructed to defer to a stricter, local standard conditioned upon meeting the minimum federal standards. New §21.163 adequately establishes local authority to make stricter rules without the need for the recommended additional language.
COMMENT:
State Representative (District 52) Mike Krusee supports the proposed rule changes, embraces the safe and effective use of technology, and commended the department for its foresight and economic sense.
RESPONSE:
The commenter offered a general opinion in favor of the rules, as proposed, with no further recommendation for substantive revision. The comments are noted and no additional action affecting the substance of these rules as proposed is made as a result of these comments.
COMMENT:
City of Austin Mayor Will Wynn proposed that the rules should clarify that any existing non-conforming static sign may not be converted to a changeable electronic billboard without municipal approval. Mayor Wynn urged the commission to delay action on this critical issue until FHWA has released results of its study. The City of Austin also raised an issue that it would "inherit" signs allowed in rural areas in which the city later expands its extraterritorial jurisdiction (ETJ).
RESPONSE:
It is the intent of the rules as proposed to prohibit any consideration for the conversion of a non-conforming sign to an electronic display. The comment is noted and §21.163(d)(2) of the rules as proposed is revised to clarify that to modify an existing sign, a new permit will be required from both the municipality and the state for the electronic sign.
On September 25, 2007, the FHWA published an internal memorandum concluding that "Changeable message signs, including Digital/LED Display CEVMS, are acceptable for conforming off-premise signs, if found to be consistent with the Federal-State Agreement and with acceptable and approved state regulations, policies and procedures." Previous study results procured by the FHWA on safety issues pertaining to CEVMS have been non-conclusive.
The proposed rules allow electronic billboards only within cities and in the ETJ, and only if the city allows them and has extended its sign ordinance to the ETJ area. Electronic signs are prohibited in areas outside of a city or a city's ETJ, so a city could not "inherit" an off-premise electronic billboard.
COMMENT:
Comments were received from the public and others (including Harris County) that claimed residents in the ETJ have no voice in city government and, therefore, it is unfair for the city to determine that electronic signs can be located there.
RESPONSE:
The Legislature has given cities their respective powers relating to property located within ETJ's, including the power to regulate signs. With respect to powers in the ETJ, and whether a city should have them without residents having a voice, the department is without authority to act. Therefore, no changes are made as a result of these comments.
COMMENT:
City of Plano Executive Director Frank F. Turner proposed that language could be more explicit to §21.163(d), Upgrading an Electronic Sign. Mr. Turner offered the general comment that rules should be modified to clearly address cities that have non-conforming signs and no longer issue permits for new billboards.
RESPONSE:
It is the intent of the rules as proposed to prohibit any consideration for the conversion of a non-conforming sign to an electronic display. In accordance with new §21.163(h), the department will only grant a permit for an electronic sign if the application for the permit has attached to it a certified copy of written permission for the electronic sign from the municipality.
COMMENT:
City of Fort Worth Mayor Mike Moncrief offered amendments to the proposed rules to ensure that the maximum degree of protection and control on the part of municipalities is retained. The City of Fort Worth provided edits to the following sections:
(1) Section 21.150(b)(3) - ". . . if the sign is located within the jurisdiction of a municipality with a population of more than 500,000 that is exercising its authority to regulate outdoor advertising, a certified copy of the permit issued by the municipality."
(2) Section 21.163(c)(1), Location of electronic signs - "Electronic signs may only be located, relocated or upgraded along a regulated highway within the corporate limits of a municipality or within the extraterritorial jurisdiction of a municipality that pursuant to state law has extended its municipal regulation to include that area and is allowed by the municipality's sign and zoning ordinances."
(3) Section 21.163(d)(3), Upgrading an electronic sign - "lighting shall not be added to or used to illuminate a sign if prohibited by the municipality's sign or zoning ordinances."
(4) Section 21.163(h)(2), Granting permits - "The department will grant a permit for an electronic sign if the application for the permit is allowed by the permitting municipality's sign or zoning ordinances; and has attached to it a certified copy of the permit for the located, relocated or upgraded electronic sign."
RESPONSE:
(1) The revision offered by the City of Fort Worth proposes to reduce the population criteria of 1.9 million to a level of 500,000. The 1.9 million-population requirement is explicit in Transportation Code, §391.068(d) as added by HB 2944, 80th Legislature, 2007. The commission is without authority to make the requested change.
(2) The comment is noted and §21.163(c)(1) of the rules as proposed is revised to reflect the suggested change.
(3) The comment is noted and paragraph (3) of §21.163(d) is added to reflect the suggested change.
(4) The comments are noted and §21.163(h) as proposed has been revised to clarify that a municipality's permission is required for any proposed electronic signs.
COMMENT: During the public-comment period, 18 comments, mainly expressing opposition, were received from association and interest groups including Weekley Development, Hamilton Pool Road Scenic Corridor Coalition, Bull Creek Foundation, Houston Northwest Chamber of Commerce, Crow Holdings, North Houston Association Board of Directors, Greenspoint District, Scenic Texas Inc., Keep Pearland Beautiful, and the San Antonio Conservation Society. Concerns included visual pollution, preservation of scenic vistas, compliance with the 1972 State Federal Agreement, safety of LED technology, and lighting. Some of the comments concerned the brightness of the signs and that the signs should automatically dim with changing light conditions. Other comments concerned the cost of the electricity used to light these types of signs.
RESPONSE:
The commenters offered a general opinion in opposition to the rules, as proposed, with no express recommendation for substantive revision. The comments are noted. Section §21.163(f) contains a requirement that an electronic sign will automatically adjust the intensity of its display according to natural ambient light conditions. As previously stated, the department is considering adoption of the rules to provide for local control and discretion over the regulation of electronic off-premise outdoor advertising signs. No change to the substance of these rules as proposed is made as a result of these comments.
COMMENT:
Scenic Texas Inc. President Don Glendenning and Scenic Texas Inc. Executive Vice President and Policy Director Margaret Lloyd submitted written comments (letter, Nov. 28, 2007) expressing "strong opposition" and that the proposed LED rules should not be adopted until the first three issues listed below are resolved in favor of allowing the technology on Texas highways:
(1) Scenic Texas stated that the department should formally assess the potential cost to taxpayers of a change in policy before allowing a single LED billboard.
(2) Scenic Texas stated the applications of this technology must be found to be safe either by FHWA study or by a government-sponsored study of its effects on driver safety. Scenic Texas provided a report ("A Critical, Comprehensive Review of Two Studies Recently Released by the Outdoor Advertising Association of America," Jerry Wachtel, dated Oct. 18, 2007) that was prepared for the Maryland State Highway Administration. The Wachtel report raises serious questions regarding the two studies offered by the Outdoor Advertising Association ("A Study of the Relationship between Digital Billboards and Traffic Safety in Cuyohoga County, Ohio" (Tantala Associates, July 2007)) and "Driving Performance and Digital Billboards: Final Report" (Lee, McElheny and Gibbons, Virginia Tech Transportation Institute Center for Automotive Safety Research, March 2007).
(3) The proposed rules are in opposition to the department's own vision statement and will degrade the aesthetic beauty of our highway system.
(4) Also, Scenic Texas would like for electronic signs to be allowed only after the city has expressly voted to allow them.
RESPONSE:
(1) As the cost of constructing a CEVMS is obviously the responsibility of the sign owner, the department assumes the comment is directed to the proposed relocation of a CEVMS resulting from the displacement of a sign due to the right-of-way needs of a transportation project. The department is acting in a regulatory capacity to consider new technology that is being used in the industry and in other states. Eminent domain costs are comprised of numerous variables. The department will monitor whether electronic signs increase eminent domain costs and may make appropriate rule changes in the future as necessary to adequately address those costs. No change to the substance of these rules as proposed is made as a result of these comments.
(2) The FHWA has advised that they will conduct research to study the potential safety effects of electronic billboards on driver attention and distraction. The department will comply with any FHWA required revisions resulting from the safety study. No change to the substance of these rules as proposed is made as a result of these comments.
(3) The department does not agree with the comment that the proposed rules are in opposition to the department's own vision statement and will degrade the aesthetic beauty of the state highway system. The department's "vision" is to be a progressive state transportation agency recognized and respected by the citizens of Texas by: (1) providing comfortable, safe, durable, cost-effective, environmentally sensitive, and aesthetically appealing transportation systems that work together; (2) ensuring a safe and desirable workplace which creates a diverse team of all kinds of people and professions; (3) using efficient and cost-effective work methods that encourage innovation and creativity; and (4) promoting a higher quality of life through partnerships with the citizens of Texas and all branches of government by being receptive, responsible, and cooperative.
The department is responsible for the regulation of the orderly and effective display of outdoor advertising along a regulated highway within the state of Texas. The department assumes that the comment is referring to vision item (1) set forth above. The department goal of providing aesthetically appealing transportation systems is not precluded by allowing the regulated industry to incorporate the latest technology for their business. The comment is noted and no additional action affecting the substance of the rules as proposed is made as a result of the comment.
(4) Section 21.163(h) insures that a permit for an electronic billboard will only be granted by the state if the permit is accompanied by a certified copy of permission by the city. If a city did not address electronic billboards in its sign code, or did not have a sign code, permission would still be required, signed and certified by the appropriate city official. Such protections are seen as sufficient to insure that no unauthorized electronic billboards are erected. The commission has no authority to require cities to submit approval of electronic signs to the voters of the cities. No change to the substance of these rules as proposed is made as a result of these comments.
COMMENTS:
Frank Sturzl, executive director for Texas Municipal League, strongly supports the principle of local control in the regulation of usage, timing, structure size, and placement of electronic billboards. He provided the following proposed language:
"§21.163(d) Upgrading an electronic sign.
(1) lighting shall not be added to or used to illuminate signs that are nonconforming under state law or any applicable municipal regulations governing a municipality's limits or extraterritorial jurisdiction; and
(2) a sign that is conforming under state law or any applicable municipal regulations governing a municipality's limits or extraterritorial jurisdiction may be modified to an electronic sign if a new permit is obtained through the process described in these rules, including obtaining permission to upgrade to an electronic sign from the municipality with jurisdiction over the sign.
(h) Granting permits. The department will grant a permit for a new electronic sign or for a sign that is conforming under state law or any applicable municipal regulations to be upgraded to an electronic sign if the application for the permit:
(1) satisfies the requirements of this subchapter; and
(2) has attached to it:
(A) a certified copy of the permit issued by the municipality that gives permission for the new electronic sign or to upgrade a sign that is conforming under state law or any applicable municipal regulations to an electronic sign; or
(B) if the municipality does not issue permits, a certified copy of written permission for the new electronic sign or to upgrade a sign that is conforming under state law or any applicable municipal regulations to an electronic sign from the municipality."
RESPONSE:
While the department is of the opinion that the rules as proposed adequately address the issue of local control, the department has revised §§21.163(c)(1), 21.163(d)(2), and 21.163(h) to clarify the necessity for prior municipal approval of any electronic sign.
COMMENT:
City of Houston Mayor Bill White supports language submitted by the Texas Municipal League (TML), clarifying "that TxDOT may not issue a permit for a new electronic sign or to upgrade a standard sign structure to an electronic sign structure unless a permit or express permission by the city local authority to become an electronic sign structure has been provided."
He stated that proposed new §21.163(h)(2) "could be interpreted as allowing a sign-structure owner an opportunity to upgrade a standard structure to an electronic signage structure by submitting to TxDOT the municipal permit issued for the original structure. The City should retain authority to determine whether original signage structures can be upgraded to electronic signage structures, should TxDOT alter its current position and allow electronic signage."
Additionally, Mayor White proposed language that "clarifies our ability to exercise more restrictive rules than those imposed with this department ruling." Specifically, the proposal from the City of Houston states: "These rules shall not be interpreted to restrict or limit the authority of municipalities to continue to prohibit Electronic Signs or to adopt more stringent ordinances for such signage that is imposed under these rules."
RESPONSE:
While the department is of the opinion that the rules as proposed adequately address the issue of local control, the department has revised §§21.163(c)(1), 21.163(d)(2), and 21.163(h) to clarify the necessity for prior municipal approval of any electronic sign. Nothing in the proposed rules limits a municipality's ability to exercise more restrictive rules than those imposed by the department. A municipality's authority is derived from the Legislature and the department by rule cannot limit or expand such authority.
In addition, minor grammatical changes were made to new §21.163 to improve readability.
Subchapter I. REGULATION OF SIGNS ALONG INTERSTATE AND PRIMARY HIGHWAYS
43 TAC §§21.142, 21.150, 21.154, 21.163
STATUTORY AUTHORITY
The amendments and new section are adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §391.032, which grants the commission the authority to regulate the orderly and effective display of outdoor advertising along a regulated highway within the state and Transportation Code, §394.004, which grants the commission the authority to promote and control the reasonable, orderly, and effective display of outdoor advertising on all highways and roads.
CROSS REFERENCE TO STATUTE
Transportation Code, §§391.021, 391.022, 391.032 and 394.004.
§21.163.Electronic Signs.
(a) Electronic images. The department has determined that the use of an electronic image on a digital display device is not the use of a flashing, intermittent, or moving light for the purposes of any rule, regulation, and standard promulgated by the department or any agreement between the department and the Secretary of Transportation of the United States.
(b) Prohibitions. An electronic sign shall not:
(1) be illuminated by flashing, intermittent, or moving lights;
(2) contain or display animated, moving video, or scrolling advertising;
(3) consist of a static image projected upon a stationary object; or
(4) be a mobile sign located on a truck or trailer.
(c) Location of electronic signs.
(1) Electronic signs may only be located, relocated, or upgraded along a regulated highway within the corporate limits of a municipality or within the extraterritorial jurisdiction of a municipality that pursuant to state law has extended its municipal regulation to include that area and is allowed by the municipality's sign or zoning ordinance.
(2) Notwithstanding §21.160 of this subchapter, an electronic sign may not be relocated so that any part of the relocated sign would be within 1,500 feet of another off-premise electronic sign on the same side of a regulated highway.
(d) Upgrading an electronic sign.
(1) Lighting shall not be added to or used to illuminate nonconforming signs.
(2) A legally conforming sign may be modified to an electronic sign if a new permit for the electronic sign is obtained from both the municipality and the department.
(3) Lighting shall not be added to or used to illuminate a sign if prohibited by the municipality's sign or zoning ordinance.
(e) Eligible electronic signs.
(1) Electronic signs may be located on either side of the highway; however, each sign must only be visible from one direction of travel.
(2) Each message on an electronic sign shall be displayed for at least eight seconds and a change of message shall be accomplished within two seconds.
(3) A change of message must occur simultaneously on the entire sign face.
(f) Safety. An electronic sign must:
(1) contain a default mechanism that freezes the sign in one position if a malfunction occurs; and
(2) automatically adjust the intensity of its display according to natural ambient light conditions.
(g) Owner responsibilities.
(1) The owner of an electronic sign shall coordinate with local authorities to display, when appropriate, emergency information important to the traveling public, such as Amber Alerts or alerts concerning terrorist attacks or natural disasters. Emergency information messages shall remain in the advertising rotation according to the protocols of the agency that issues the information.
(2) The sign owner shall provide to the department contact information for a person who is available to be contacted at any time and who is able to turn off the electronic sign promptly after a malfunction occurs.
(3) If the department finds that an electronic sign causes glare or otherwise impairs the vision of the driver of a motor vehicle or otherwise interferes with the operation of a motor vehicle, the owner of the sign, within 12 hours of a request by the department, shall reduce the intensity of the sign to a level acceptable to the department.
(h) Granting permits. The department will grant a permit for an electronic sign if the application for the permit:
(1) satisfies the requirements of this subchapter; and
(2) has attached to it:
(A) a certified copy of the permit issued by the municipality that gives permission for the electronic sign; or
(B) if the municipality does not issue permits, a certified copy of written permission for the electronic sign from the municipality.
(i) Conflicts with subchapter. All regulations provided by this subchapter apply to electronic signs, except if this section conflicts with another provision of this subchapter, this section controls.
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 February 29, 2008.
TRD-200801224
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: June 1, 2008
Proposal publication date: September 7, 2007
For further information, please call: (512) 463-8683
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §391.032, which grants the commission the authority to regulate the orderly and effective display of outdoor advertising along a regulated highway within the state and Transportation Code, §394.004, which grants the commission the authority to promote and control the reasonable, orderly, and effective display of outdoor advertising on all highways and roads.
CROSS REFERENCE TO STATUTE
Transportation Code, §§391.021, 391.022, 391.032 and 394.004.
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 February 29, 2008.
TRD-200801225
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: June 1, 2008
Proposal publication date: September 7, 2007
For further information, please call: (512) 463-8683
The Texas Department of Transportation (department) adopts new §21.921, Purpose, §21.922, Definitions, §21.923, Eligibility, §21.924, Application Procedure, §21.925, Master Agreement, §21.926, Calculation of Annual Prepayment Amount, §21.927, Project Utility Agreement, §21.928, Utility Cost Estimates, §21.929, Reimbursement, and §21.930, General Requirements (New Subchapter P, Utility Relocation Prepayment Funding Agreements), all concerning utility relocation prepayment funding agreements. New §§21.921 - 21.930 are adopted without changes to the proposed text as published in the November 30, 2007, issue of the Texas Register (32 TexReg 8734) and will not be republished.
EXPLANATION OF ADOPTED NEW SUBCHAPTER
Senate Bill 1209, 80th Legislature, Regular Session, 2007, took effect May 17, 2007, and added Transportation Code, §203.0922 authorizing the Texas Transportation Commission (commission) to establish a prepayment funding agreement program for the department to reimburse a utility the costs of relocating certain utility facilities required by the department's improvement of a segment of the state highway system. Currently, the department only reimburses utility companies for the costs of adjusting utility facilities for specific types of state highway improvement projects and circumstances under Transportation Code, §203.092. That includes improvement of interstate highways, segments of the state highway system where the utility has a compensable property interest in the land occupied by the facility to be relocated, and one-half of the costs required by improvement of toll projects. These types of reimbursed utility relocations only account for approximately 10 percent of all projects. For state highway improvement projects that are not covered by Transportation Code, §203.092, there is often a delay in the utility adjustment due to the costs not being reimbursed.
New Transportation Code, §203.0922 authorizes a utility company to execute an agreement with the department in which the utility agrees to annually prepay to the department 75 percent of the estimated utility relocation costs for all state highway improvements during that year that would not be eligible for reimbursement under Transportation Code, §203.092. The prepayment funding agreement program will be set up in three-year cycles. The annual prepayment amount to be paid by a utility for each year of a three-year cycle will be based on the average of actual costs paid for utility relocations on applicable state highways during the preceding three years. The first three-year cycle of the agreement will be based on cost information supplied by the utility for its costs in the preceding three years. All subsequent three-year cycles of the agreement will be based on cost information supplied by the department for actual reimbursements to the utility under the program. In return for the estimated 75 percent prepayment, the department will reimburse the utility company 100 percent of the utility's actual relocation costs on those improvement projects covered by the program during the year. The commission proposes this new subchapter to establish a procedure for the implementation and administration of that legislation.
In compliance with Senate Bill 1209, the commission appointed a rules advisory committee composed of seven members representing the utility community - five from private business and two from local government. Together, the members represented utilities providing service to the public in the areas of water, electricity, gas, communication, and cable television. The rules advisory committee met eight times with department staff to render advice, review draft proposals, and make specific recommendations. On November 9, 2007, with five members present, the rules advisory committee unanimously recommended that the commission adopt these rules.
New §21.921, Purpose, describes the purpose of the subchapter as establishing a prepayment funding agreement program to reimburse utility companies for costs of adjusting utility facilities required by state highway improvement projects. This program only applies to that portion of utility relocation work for which the utility is not eligible for reimbursement under the general statutory provisions of Transportation Code, §203.092. Consequently, this program does not apply to the costs of relocating utility facilities required by improvement of interstate highways, segments of the state highway system where the utility has a compensable property interest in the land occupied by the facility to be relocated, or one-half of the costs required by improvement of toll projects.
New §21.922, Definitions, defines words and terms used in this subchapter. The definitions in §21.922 of (1) "accounting ledger", (2) "actual costs", (3) "approved work order accounting system", and (16) "indirect and overhead costs" are all tied to the individual utility's establishment of an accounting system for identifying and recording reimbursable utility relocation costs by work order in a format that is submitted to and approved by the department as part of the application process described in §21.924. The accounting system and identification of costs must be compliant with Generally Accepted Accounting Principles.
The definitions in §21.922 of (7) "department", (11) "district", (12) "district engineer", (13) "division", (14) "executive director", and (17) "office" describe the organizational structure of the department and are consistent with definitions used in other chapters of Title 43, Texas Administrative Code (43 TAC).
The definitions in §21.922 of (4) "as-built plans", (6) "conduit", (8) "depth of cover", (10) "distribution line", (21) "service line", (23) "transmission line", and (25) "utility appurtenances" describe technical terms unique to the placement of utility facilities in state highway right of way that are consistent with definitions used in 43 TAC, Chapter 21, Subchapter C dealing with accommodation of utilities in state highway right of way.
New §21.922(5) defines "betterment" as an upgrading of the utility facility being relocated that is not attributable to the highway construction project nor required in order to comply with any other law, and is made solely for the benefit and at the election of the utility. This type of relocation work performed by or on behalf of a utility is a benefit to the utility not caused by the highway improvement and becomes a credit against the utility's actual costs of relocation. The definition is consistent with definitions in the Title 23, Code of Federal Regulations (23 C.F.R.), Chapter 1, Part 645.
New §21.922(9) defines "director" as a designee of the department's executive director not below the level of division director, office director, or district engineer. This person must be a high level department employee and is the administrator of the prepayment funding agreement program on behalf of the department.
New §21.922(15) defines "highway improvement project" as any type of improvement to the state highway system by or on behalf of the State of Texas, whether for roadway, bridge, drainage or any other facility purposes related to the highway, and regardless of the source of funding or the entity responsible for development or operation of the project. The definition excludes projects that are owned or operated by regional mobility authorities and regional tollway authorities that are not subject to the general utility relocation reimbursement authority of Transportation Code, §203.092. Highway improvement projects defined by this section are eligible for participation in the prepayment funding agreement program.
New §21.922(18) defines "relocation" as any adjustment or modification of a utility's facilities required by a highway improvement project, including removal, reinstallation, replacement, temporary facilities, and safety and protective measures. This is the utility work being performed that is eligible for reimbursement under the prepayment funding agreement program. The definition is consistent with definitions in the 23 C.F.R., Chapter 1, Part 645.
New §21.922(19) defines "relocation/adjustment costs" as all of the direct and related indirect and overhead costs identified by the approved utility work order accounting system for work paid or incurred by the utility related to its relocation of utility facilities required by a highway improvement project. Any credits represented by betterments, applicable accrued depreciation, and salvage value will be deducted from the costs. The relocation work must be accomplished in accordance with federal and state requirements and the expenditures must be authorized and allowable under 23 C.F.R., Chapter 1, Part 645 and Federal Acquisition Regulations under Code of Federal Regulations, Title 48, Chapter 1.
New §21.922(20) defines "salvage value" as the amount received by the utility from the sale of utility property removed in the relocation work, or the amount used for accounting purposes if the removed property is retained by the utility. The definition is consistent with definitions in the 23 C.F.R., Chapter 1, Part 645.
New §21.922(22) defines "state highway system" as the system of state highways included in a comprehensive plan prepared by the department's executive director under direction by the commission and as indicated in the Texas Highway Designation Files or State Departmental Map maintained by the department's Transportation Planning & Programming Division. Only utility relocation work related to highways on the state highway system is eligible for participation in the prepayment funding agreement program.
New §21.922(24) defines "utility" as any business entity or political subdivision engaged in the business of transporting or distributing a utility product for public consumption, or any separate operating business unit or department of such an entity. Only a utility defined by this paragraph is eligible for participation in the prepayment funding agreement program. The definition is consistent with definitions in the 23 C.F.R., Chapter 1, Part 645.
New §21.922(26) defines "utility facilities" as all utility lines and their appurtenances not owned or operated by the department that are located within the state highway right of way, including underground, surface, and overhead facilities, and whether transmission, distribution, or service lines. The term only applies to utility lines and appurtenances, the relocation of which is not eligible for reimbursement under Transportation Code, §203.092. If the relocation work is eligible under Transportation Code, §203.092, including improvement of interstate highways and segments of the state highway system where the utility has a compensable property interest in the land occupied by the facility to be relocated, costs related to the utility relocation work are not eligible for reimbursement under the prepayment funding agreement program.
New §21.923(a), Eligibility, establishes the general eligibility requirements for participation in the prepayment funding agreement program. Any utility that installs, operates, constructs, and maintains its utility facilities within state highway right of way and satisfies the financial requirement of §21.923(b) is eligible to apply for the program. Participation is limited to utilities that engage in transporting or distributing a utility product for public consumption and that have lines within state highway right of way, the relocation of which is not eligible for reimbursement under Transportation Code, §203.092.
New §21.923(b), Financial requirement, requires a utility to demonstrate that it incurred relocation costs equal to an average minimum of $500,000 for each year of the three year period preceding submission of the utility's application. The program is designed for utility companies that regularly engage in relocations and incur costs that are significant enough to justify the department's and the utility's additional administrative time, documentation, and expense of participation.
New §21.924(a), Application, outlines the application requirements for an eligible utility's participation in the prepayment funding agreement program. There is no deadline for submitting an application provided that it is submitted prior to the expiration date of Transportation Code, §203.0922. The provisions of that statute set an original expiration date of September 1, 2013. The written application must contain (1) a description of the types of a utility's facilities and other information that indicates the size and location of its facilities, (2) a description of the utility's accounting system with regard to identifying and tracking relocation/adjustment costs by work order, (3) the most recent external audit of the utility's accounting system prepared by an independent certified public accountant within the preceding three years, (4) an accounting ledger that complies with §21.926, (5) a description of the method by which the utility calculates the percentage of indirect and overhead costs to be reimbursed as a relocation/adjustment cost, and (6) a list of each highway improvement project in progress for which the utility is engaged in the relocation of utility facilities and the utility will seek reimbursement of its future relocation/adjustment costs. The application process in §21.924(a) seeks to establish the size and location of utility facilities brought into the prepayment funding agreement program, the capability of a utility's accounting system to accurately identify and record the relocation/adjustment costs, and the historical costing data needed under §21.926 to calculate a realistic annual prepayment amount that will be paid by the utility for each year of the first three year period of the agreement. The reliability of the utility's accounting system and its compliance with Generally Accepted Accounting Principles are the most critical factors in the department's ability to monitor legitimacy of the costs and satisfy its fiscal responsibility.
New §21.924(b), Supplemental information, authorizes the program director to require an applicant to submit explanations and supplemental information to satisfy specific application requirements if the director finds that the information provided in the application is inconsistent or incomplete.
New §21.924(c), Evaluation, establishes the period for the program director to review the application and provide written notice of approval or disapproval. Because there is a separate extended period for contesting and appealing a determination of the initial annual prepayment amounts under §21.926, the director may approve the application subject to a final decision on the initial annual prepayment amount. A notice of disapproval must include the rationale and findings and conclusion on which the disapproval is based.
New §21.924(d), Filing of protest, establishes a protest procedure by which a utility may contest the director's disapproval of its application. The protest must be in writing and state the grounds for the protest and its factual basis. The utility has the burden of proving its protest which will be decided without a hearing and solely on the basis of its written submission. A final written decision approving or disapproving the application must be issued by the executive director or the executive director's designee, who may not be the director, within 30 days after the date of receipt of the protest. The protest procedure provides an opportunity for the utility to appeal the director's disapproval decision to a different senior level department official if the utility is of the opinion that the decision was unreasonable or arbitrary.
New §21.924(e), Reapplication, restricts a utility from reapplying for participation in the program for a period of one year if its application is finally disapproved. Since it is unlikely that any of the adverse conditions that existed at the time of the utility's initial application would have been cured in a shorter time period, a year is a reasonable period for a new application.
New §21.925, Master Agreement, describes the requirement for negotiation and execution of a master agreement between the department and a utility to evidence participation in the program and outlines the provisions that all master agreements must contain. A funding prepayment agreement, described in this section as a master agreement, is required by Transportation Code, §203.0922.
New §21.925(a), Form of master agreement, provides the requirements for the master agreement. The agreement must be in a written form approved by the director, be for a term that is a multiple of three years and a minimum of six years as required by Transportation Code, §203.0922, include the annual prepayment amount for each year of the initial three year period and the method and time of payment, identify the responsibilities of each party, and require execution of separate project utility agreements for each highway improvement project as described in §21.927, Project Utility Agreement.
New §21.925(a)(6) requires execution of two additional agreements that will apply to all relocations of utility facilities during the term of the master agreement that result in a portion of the facilities being placed in a new location, vertical elevation, or horizontal alignment. A comprehensive utility installation request or notice will cover that portion of a relocation located on land for which the utility has no compensable property interest such as an easement and a comprehensive utility joint use acknowledgment agreement will cover that portion of a relocation located on land for which the utility has a compensable property interest. The comprehensive utility installation requests and comprehensive utility joint use acknowledgment agreements must provide for amendment or termination as required to bring the parties into compliance with future material changes to applicable federal and state law. The use of the comprehensive agreements with the required attached drawings and supplements for relocations instead of an entirely separate agreement for each relocation is an effort to streamline the process by reducing paperwork and eliminating time expended in individual negotiations.
New §21.925(a)(7) requires that the master agreement contain statements that the relocation of the utility facilities performed by or on behalf of the utility will comply with applicable federal and state laws, regulations, rules, and policies, that the utility is responsible for its own acts and deeds during performance of its utility relocation, and that the department, for purposes of reimbursement, has the right to inspect, at its own expense, the relocation work performed by the utility.
New §21.925(a)(8) mandates that the master agreement require the parties to continue performance of their respective payment and relocation work obligations in the event of a dispute and that the continuation of performance is not a waiver of any legal right. Those provisions are intended to foster cooperation and focus on the expeditious performance of obligations.
New §21.925(b), Payment of the annual prepayment amounts, establishes in the master agreement the conditions for payment by the utility of each annual prepayment amount including the method and time of payment. The first annual prepayment amount is due upon execution of the master agreement. Each succeeding annual prepayment is due on or before the anniversary date of the master agreement. The utility may choose to pay the amount in four equal quarterly installments. Interest on past due amounts accrues at the rate described in Government Code, §2251.025, which is currently the prime interest rate plus 1 percent. Both the utility and the state pay the same variable interest rate for past due payments. Quarterly payments are authorized to allow the utility to manage its cash flow requirements and to reduce the loss of interest and use of the money inherent in making large advance payments.
New §21.925(c), Deposit of funds, provides that funds paid by the utility will be deposited into the state treasury to the credit of the state highway fund. This is required by Transportation Code, §203.0922. As mandated by state law, the department will not pay interest on the funds.
New §21.925(d), Payment default by utility, establishes for the master agreement the terms of default by a utility. If the utility fails to timely pay the annual prepayment amount or any installment within 30 days after receipt of written notice of default, the department may terminate the master agreement. This provision provides the utility with written notice and an opportunity to cure the default so that inadvertent missed payments do not result in termination.
New §21.925(e), Payment default by department, establishes for the master agreement the terms of default by the department. If the department fails to timely pay a reimbursement invoice within 30 days after receipt of written notice of default and there have been two or more separate defaults and failures to cure within any one year period, the utility may terminate the master agreement. The difference in treatment of payment default reflects the practical difference in payment obligations. The utility has one payment obligation that is pre-set and known in advance. To the contrary, the department has multiple payment obligations on each project and must respond to bills when submitted. The department must also depend on timely response from the Comptroller's Office. Subsection (e) also gives the utility an option to terminate the agreement either immediately or at the end of that one year period in order to receive maximum benefit of its annual prepayment. The department and all state agencies are prohibited by the Texas Constitution, Article VIII, §6, and Government Code, §403.077 from paying a refund to the utility in the event of early termination.
New §21.925(f), Termination, provides that in addition to the reasons for termination under other provisions of the rules, the master agreement may be terminated by mutual agreement of the parties. Upon termination, the department will retain all utility prepayments received before the date of termination and neither party will have any further obligations under the master agreement, except that the department will continue to reimburse the utility for costs incurred prior to the date of termination.
New §21.925(g), Indirect and overhead costs, outlines the procedure to be followed in a master agreement for calculation of indirect and overhead costs to be charged and reimbursed under the program. The calculation methodology is determined individually for each utility as part of the application process under §21.924 and is applied to each relocation project during the utility's participation in the program. Historically, in dealing with payment submissions for relocation projects that were reimbursable under Transportation Code, §203.092, there was often a dispute over the calculation of indirect and overhead costs. This new approach is an effort to bring consistent treatment to payment of indirect and overhead costs on each of the utility's relocation projects and streamline the process by reducing review and audit time. Paragraph (2) of this subsection authorizes the utility to annually request a change in the methodology by submitting the same type of information required in the application process of §21.924. Paragraph (3) of this subsection allows the department, upon 30 days notice, to audit the utility's financial information that supports the methodology and within 60 days after the utility's request, to object to the change. The objection procedures will be the same as set out in §21.926(e) and (f) dealing with objections to the calculation of relocation/adjustment costs. Paragraph (4) of this subsection maintains the existing calculation methodology for bill submissions pending a final determination on the requested change. The procedures in paragraphs (2), (3), and (4) seek to give the utility flexibility to adjust to changing business conditions while preserving the department's fiscal responsibility to monitor legitimacy of the costs.
New §21.925(h), Notice requirements, imposes specific notice requirements for any acceptance, approval, or any other like action required or permitted to be given by either party under the master agreement. The notice must be in writing, shall not be unreasonably withheld or delayed, and if acceptance, approval, or any other like action is withheld, the withholding party must specify the reason for withholding and make every effort to identify in detail the changes necessary for acceptance, approval, or other action. The object is to foster cooperation and focus on the expeditious performance of obligations.
New §21.925(i), Accounting system, requires the utility to notify the department in writing of any significant change to its accounting system described in its application and approved under §21.924. The notice must describe the new system and include a certification that it complies with the requirements of §21.924. The reliability of the utility's accounting system and its compliance with Generally Accepted Accounting Principles are the most critical factors in the department's ability to monitor legitimacy of the costs and satisfy its fiscal responsibility.
New §21.925(j), Amendment, provides that the master agreement may be amended only by a written instrument executed by both parties.
New §21.925(k), Choice-of-law, provides that the master agreement will be construed under the laws of the State of Texas.
New §21.926, Calculation of Annual Prepayment Amount, describes the procedure for calculation of the annual prepayment amounts to be paid by the utility to the department. Subsection (a)(1) of this section establishes the basic requirement of Transportation Code, §203.0922, that the annual prepayment amount for each year of the initial three-year period and all subsequent three-year periods will be equal to 75 percent of the averaged annual relocation/adjustment costs incurred or paid for the relocation of utility facilities during the applicable preceding three-year period. The definition of "relocation/adjustment costs" limits the calculation to only those costs related to relocation of utilities on the state highway system for which the utility was not eligible for reimbursement under Transportation Code, §203.092. The remaining paragraphs of subsection (a) of this section further limit and define the types of costs that are to be included in the calculation. Only the work that is eligible for reimbursement under this subchapter will be used in calculating the annual prepayment amount. For reimbursement the relocation/adjustment costs must be paid or incurred within the applicable three-year period, regardless of when the relocation project began or ended. Relocation/adjustment costs will be included in the calculation regardless of which cost method is used by the utility. The objective of the section is to include all relocation/adjustment costs that were actually paid or incurred during the applicable three-year period since that is how the department will be reimbursing the utility under the program.
New §21.926(b), Three-year calculation period, describes how to measure a three-year period for purposes of calculating annual prepayment amounts under this section. The calculation periods are designed to allow the parties a minimum of 60 days prior to the change date in order to close their books and calculate the average costs.
New §21.926(c), Initial three-year period, establishes the specific requirements that a utility must submit for the calculation of the annual prepayment amount for the initial three-year period of the master agreement, including relocation/adjustment cost information and a certified accounting ledger that lists for each year of the preceding three-year period all of the relocation/adjustment costs incurred or paid for relocation of the utility's facilities. The department, upon 30 days written notice, may audit the utility's applicable financial records to verify the accounting ledger. The subsection sets the time limit for the department to complete its audit and submit written objections to the utility. Prior to the creation of this prepayment funding agreement program, the utilities were responsible for paying relocation/adjustment costs on projects that were not eligible for reimbursement by the department under Transportation Code, §203.092. Therefore, the department has no record of those costs and must rely on the utilities' accounting records. There is no uniform method of keeping those records among the utilities so the requirements in this subsection are designed to provide maximum flexibility for the utilities while maintaining a sufficient level of verification by the department to satisfy its fiscal responsibility obligations.
New §21.926(d), Subsequent three-year period, establishes the specific requirements for the department to provide for calculation of the annual prepayment amount for all subsequent three-year periods of the master agreement. The requirements are similar to those for the initial three-year period. The utility may audit the department's applicable financial records to verify the record of financial reports. The subsection sets the time limit for the utility to complete its audit and submit written objections to the utility. Once this prepayment funding agreement program begins, the department will be responsible for paying or reimbursing all relocation/adjustment costs on projects covered by the program. Therefore, the department will have a record of those costs and calculations for future annual prepayment amounts will be more precise. The utilities also have the right to conduct an audit so that they can verify accurate record keeping by the department.
New §21.926(e), Objection to calculation, provides a procedure for either the department or a utility to resolve by negotiation a dispute over an objection to the other party's calculation of relocation/adjustment costs. The department and utility are required to negotiate in good faith. If early negotiation fails, either party may require nonbinding mediation by satisfying the requirements set out in the subsection; the costs of mediation are split equally between the department and the utility.
New §21.926(f), Director's determination, provides that if an agreement is not reached by negotiation or mediation, the director will make a final determination regarding the calculation of relocation/adjustment costs within 60 days after the date that a written objection is received. If the utility does not agree with the final determination or if the director fails to act within the required period, the utility may submit a written protest to the executive director. The protest will be decided by the executive director, or the executive director's designee, within 30 days on the basis of the utility's written submission, without a hearing and with the burden of proof on the utility. Since the department is not authorized by law to engage in binding arbitration for disputes of this type, the mediation and protest procedures are designed to give the utility every opportunity to present its side of the dispute and move resolution of the issue to another person if it feels the director is being arbitrary or unreasonable. The process is similar to procedures used by the department for disputes in other chapters of the Texas Administrative Code. Ultimately, if the department is acting in an arbitrary or unreasonable manner, the utility may bring a lawsuit in district court.
New §21.926(g), Payment due date, delays the utility's payment obligation of an annual prepayment amount until 30 days after final resolution of the dispute concerning the calculation of relocation/adjustment costs.
New §21.927, Project Utility Agreement, outlines procedures and responsibilities related to performance of the utility relocation work on individual projects including cooperative planning, design, cost estimation, and execution of project utility agreements.
New §21.927(a), Purpose, describes its purpose as creating a continuing cooperative role and responsibility for the department and the utility for the adjustment of utility facilities required by improvements to the state highway system. The parties will participate in the planning, design, and construction of highway improvement projects regarding the accommodation of utility joint occupancy and comply with the "TxDOT-Utility Cooperative Management Process" described in the department's Utility Manual. Many of the procedures described in this section are referenced in the Utility Manual, but this section seeks to streamline and clarify those procedures in order to remove the potential for dispute and expedite both the performance of relocation work and reimbursement of the costs. The procedures are consistent with the statutory requirements of Transportation Code, §203.0935.
New §21.927(b), Initial project notification, requires the department to provide to the utility an initial highway improvement project notification that includes the proposed preliminary schematic, scope of the project in narrative form, proposed construction schedule, date of right of way release, and identity of the department's project design engineer and a letter of eligibility for reimbursement under this prepayment funding agreement program. This requirement is designed to give the utility advance notice of the highway improvement project so that it can determine if the project will interfere with its existing utility facilities.
New §21.927(c), Utility plans, requires the utility to provide to the department within 60 days after receipt of an initial project notification the utility's plans and the name of the utility representative for the relocation. The exchange of information will allow the parties an opportunity to review the planning and highway design and determine if a change in design could reduce or eliminate the need to relocate existing utility facilities.
New §21.927(d), Agreement, requires the parties to negotiate in good faith to reach a project utility agreement when the department provides the utility with sufficient information to enable the utility to reasonably determine the future location of the utility facilities and to prepare the estimated cost of relocation. The project utility agreement is specific to the identified relocation work and establishes the terms of performance and reimbursement.
New §21.927(e), Changes in scope of work, requires the department to reimburse a utility for its cost to redesign and relocate its facilities if there are any significant changes by the department in the scope of work not covered by the approved agreement. The parties must negotiate in good faith to amend the project utility agreement or execute a written change order.
New §21.927(f), Changes in cost estimate, requires the utility to submit a supplemental estimate of costs after the execution of a project utility agreement if the utility reasonably determines that there will be a substantial cost increase for the work.
New §21.927(g), Partially eligible relocations, establishes the method for handling relocation projects that contain both work that is eligible for reimbursement under the prepayment funding agreement program and work that is eligible for reimbursement under Transportation Code, §203.092. Paragraph (1) of §21.927(g) provides that all of the relocation work will be subject to a project utility agreement and its required procedures. Paragraph (2) of §21.927(g) clarifies that only those relocation/adjustment costs not eligible for reimbursement under Transportation Code, §203.092 will be included in the annual prepayment calculation for a subsequent three-year period. This allows the parties to take advantage of the streamlined performance and payment procedures under the prepayment funding agreement program for all of the work while only allocating appropriate amounts to the calculation formula.
New §21.927(h), Preliminary engineering costs, authorizes engineering, surveying, and related project management costs incurred by the utility for design after receipt of an initial project notification to be reimbursed under the program even if the department later determines that the relocation is not necessary. These types of costs serve a useful planning function that expedites the project and benefits both parties.
New §21.928(a), General, describes the form and structure of the cost estimates that must be attached to a project utility agreement as required in §21.927, Project Utility Agreement. The cost estimates must be itemized and sufficiently detailed and informative to provide the department with a clear description of the work required and a reasonable basis for analyzing the actual cost records. The format, structure, and level of detail of the estimate should be substantially the same as the bill.
New §21.928(b), Structure of estimate, describes the substance that cost estimates must contain, including a narrative of the scope of work, the cost categories or accounts required by the utility's approved accounting system, a summary of all costs for the major cost accounts, and all applicable credits. With a streamlined reimbursement process that does not require invoices, it is critical for the department that the cost estimates contain detailed information and that the format, structure, and level of detail of the estimate match the format, structure, and level of detail of the bill. Without this information, it would not be possible for the department to adequately analyze costs listed in the bill and fulfill its financial responsibility to the state.
New §21.929, Reimbursement, describes the reimbursement process, including accounting and billing requirements, prompt payment obligations, and department audit procedures. This is in compliance with the statutory obligation under Transportation Code, §203.0922 to provide a methodology for the utility to submit, document, and substantiate reimbursable costs and a methodology for the department to reimburse the utility its reimbursable costs in a timely manner.
New §21.929(a), Accounting system, requires all utility relocation/adjustment costs to be recorded by means of work orders in accordance with the utility's approved work order accounting system. The utility must maintain complete and accurate records of costs in accordance with federal regulations in its accounting system and must use the same accounting system for all relocations under the master agreement unless otherwise agreed in writing.
New §21.929(b), Intermediate payments, establishes requirements for intermediate payments to the utility for partial performance of the work on a relocation project estimated to take longer than one year or to exceed $100,000. The intermediate payments may not be made more often than monthly and will be based on the percentage of work completed as reported by the utility and independently verified by a department representative. The total amount of intermediate payments may not exceed 80 percent of the total cost estimate. The payment of an intermediate bill is not final payment for any item on which the intermediate payment is made. The use of intermediate payments up to a maximum of 80 percent of the total cost estimate is consistent with existing department policy for utility relocation reimbursements under Transportation Code, §203.092. The one year or $100,000 threshold requirement is designed to make intermediate payments available for relocations that are long enough or expensive enough to likely impose a financial hardship on utility companies without increasing the administrative burden of handling intermediate payment requests on small relocation jobs. Reliance on a utility's certification of work completed rather than a requirement for submitting actual invoices is consistent with the effort to streamline the payment process.
New §21.929(c), Final billing, describes the requirements for a utility's submission and substantiation of a final bill under the actual cost method for relocation work performed on a highway improvement project. The bill must be submitted within 180 days after date of completion of the utility's work. The billing procedure described in this subsection should significantly reduce the administrative paperwork and delay currently associated with reimbursements for utility relocation work under Transportation Code, §203.092. Requirements for submission of actual invoices and a department audit before the final 10 percent can be released to the utility are eliminated. Instead, there is a reliance on the utility's certification of the costs incurred coupled with a department inspection of the relocation work to verify that it was performed in accordance with the scope of work described in the project utility agreement. The comparison analysis establishes a baseline for assisting in the department's determination as to whether an audit may be necessary and provides an indicator that a utility's cost estimating procedures may need improvement. The requirement here as well as in the definition of "relocation/adjustment costs" that the costs be in compliance with the Federal Acquisition Regulations provides an acknowledged and uniformly accepted national costing standard to which both parties can refer in order to provide consistency in determination of allowable costing and minimization of disputes over methodology and treatment of costs.
New §21.929(d), Prompt payment, imposes on the department an obligation to pay 100 percent of the amount billed within 30 days after receipt of the bill in accordance with the terms of Government Code, Chapter 2251. The obligation to pay arises upon the utility's satisfactory completion of the relocation work and receipt of a properly prepared bill.
New §21.929(e), Electronic billing, authorizes the use of electronic submission for billing information to the extent it is reasonable and practical. This is an additional effort to streamline the billing and payment process.
New §21.929(f), Audit, establishes the procedure and specifications for a department audit of the utility's cost records and accounts. The ability to audit the utility's records relating to reimbursement of relocation/adjustment costs is critical to the department fulfilling its financial responsibility under the program and is required by the 23 C.F.R., Chapter 1, Part 645. Since the streamlined payment process under this program does not require a 10 percent retainage and audit for each relocation project, there needs to be a reasonably effective collection remedy for any unsupported reimbursed costs that are later discovered through periodic audits of the utility's work order accounting system.
New §21.930(a), Projects in progress, clarifies that when a master agreement is executed between the parties and the first annual prepayment is paid, the department's obligation to reimburse relocation/adjustment costs applies to ongoing highway improvement projects as well as those that begin after the master agreement is in effect. However, the obligation to reimburse does not arise until the parties execute a project utility agreement for the remaining portion of the relocation work. Reimbursement is not required if a utility has already completed more than 90 percent of its relocation scope of work or if a utility chooses not to include a relocation that is already in progress.
New §21.930(b), Assignment of interest in master agreement, provides that the master agreement will be binding and benefit the parties and their permitted successors and assigns and further authorizes the assignment of a utility's interest in the master agreement under certain conditions. Because of the common occurrence of acquisitions and mergers in the utility industry, it is necessary to provide flexible alternatives for dealing with those situations. There are three types of utility mergers, acquisitions, and conveyances of facilities that involve assignments of a utility's interest in a master agreement and are covered by this subsection. Paragraph (2) of this subsection provides that if the utility merges with, conveys substantially all of its utility facilities to, or is acquired by another entity that did not previously have any significant utility facilities, the utility can assign all of its interest in its existing master agreement to the new entity. The existing agreement will continue with all of its original terms and will cover the same utility facilities. Paragraph (3) of this subsection provides that if the utility merges with, acquires, or is acquired by another entity that already had significant utility facilities that are also covered by the prepayment funding agreement program, the utility can assign all of its interest in its existing master agreement to the new successor entity. An amended master agreement will be executed that will combine all of the utility facilities and prepayment amounts into a single master agreement, without the need to file a new application or obtain pre-approval by the department. Unless otherwise agreed to by the parties, both the new anniversary date and termination date for the amended master agreement will be the same as the later of the two existing master agreements. Since the anniversary date for one of the entities will change when an amended master agreement is signed, there will be a gap in coverage for that annual prepayment amount which will be paid in a prorated amount at the time of execution. Paragraph (4) of this subsection provides that if the utility merges with, acquires, or is acquired by another entity that already had significant utility facilities but the other entity is not in the prepayment funding agreement program, the successor entity must, within 45 days after the transaction, notify the department of the successor entity's name and contact information and choose to 1) terminate the master agreement at the end of the then current year; 2) continue the master agreement with only the utility facilities covered by the original agreement; or 3) apply for an amended master agreement to combine all of the facilities of both entities. If the successor entity fails to timely notify the department of its selection or if its application for an amended master agreement is disapproved, the successor entity will be deemed to have terminated the existing master agreement.
New §21.930(c), Conveyance of substantially all utility facilities, authorizes a utility to terminate its master agreement if the utility conveys substantially all of its utility facilities to another business entity that does not control and is not controlled by the utility or any of its members, partners, or shareholders. This subsection allows the utility to sell all of its utility facilities to another business without either entity being bound by the master agreement.
New §21.930(d), Acquisition or conveyance of major utility facilities, authorizes either the utility or department to request an amendment to a master agreement if the utility acquires major utility facilities from, or conveys major utility facilities to, another business entity that does not control and is not controlled by the utility or any of its members, partners, or shareholders. It is common in the utility industry for a utility to acquire or convey significant portions of utility facilities while maintaining its business of transporting or distributing a utility product for public consumption. This subsection sets out the procedure to provide flexible alternatives for dealing with those transactions by modifying the utility's payment obligations to match its new inventory of facilities. The utility is required to provide a certification of the estimated number of centerline miles of state highway right of way of increase or decrease as a result of the acquisition or conveyance, the resulting percentage of increase or decrease, the types of utility facilities that were involved, and the counties or regions in which the acquired or conveyed utility facilities are approximately located. Within 30 days after receipt of the acquisition/conveyance notice and certification, either the department or utility may request that the master agreement be amended to adjust the calculation of future annual prepayment amounts.
New §21.930(e), Conflict, contains a conflicts provision. Some of the utility relocation issues addressed in existing Chapter 21, Subchapter B (Utility Adjustment, Relocation, or Removal) and Subchapter C (Utility Accommodation) are similar to the issues in the new prepayment funding agreement program provided by Chapter 21, New Subchapter P. While some of the procedures are common, others are being changed to accomplish a streamlined process. This subsection specifically provides that New Subchapter P controls if there is a conflict between it and Subchapter B or C.
COMMENTS
No comments on the proposed new sections were received.
STATUTORY AUTHORITY
The new sections are adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §203.095, which directs the department to adopt rules to implement Transportation Code, Chapter 203, Subchapter E concerning relocation of utility facilities required by improvement to the state highway system.
CROSS REFERENCE TO STATUTE
Transportation Code, §203.092 and §203.0922.
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 February 29, 2008.
TRD-200801226
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: March 20, 2008
Proposal publication date: November 30, 2007
For further information, please call: (512) 463-8683