PART 1. TEXAS DEPARTMENT OF TRANSPORTATION
SUBCHAPTER A. ORGANIZATION AND RESPONSIBILITIES
The Texas Department of Transportation (department) adopts amendments to §1.2, concerning organization and responsibilities. The amendments to §1.2 are adopted without changes to the proposed text as published in the October 10, 2008, issue of the Texas Register (33 TexReg 8484) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Government Code, §2001.039 requires a state agency to review each of its rules every four years or more frequently and, as a result of the review, to decide whether to readopt, amend, or repeal the rule. In the course of reviewing the rule relating to the organization of the department, the department identified changes that need to be made.
Amendments to §1.2, Texas Department of Transportation, change the name of the Automobile Theft Prevention Authority (authority) and remove language that refers to the authority's staff. House Bill 1887, 80th Legislature, 2007 changed the name of the authority from the Automobile Theft Prevention Authority to the Automobile Burglary and Theft Prevention Authority. Section 1.2(e) is amended to reflect that change. In 1997 the legislature removed the authority's authority to employ staff and required the authority to use staff of the department. To reflect existing law, the amendments delete the last sentence of §1.2(e), which refers to the authority's staff.
COMMENTS
No comments on the proposed amendments were received.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department.
CROSS REFERENCE TO STATUTE
Tex. Rev. Civ. Stat. Ann. art. 4413(37).
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 December 18, 2008.
TRD-200806572
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: January 7, 2009
Proposal publication date: October 10, 2008
For further information, please call: (512) 463-8683
The Texas Department of Transportation (department) adopts amendments to §1.11, concerning procedure for adoption of rules. The amendments to §1.11 are adopted without changes to the proposed text as published in the October 10, 2008, issue of the Texas Register (33 TexReg 8485) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Government Code, §2001.039 requires a state agency to review each of its rules every four years or more frequently and, as the result of the review, to decide whether to readopt, amend, or repeal the rule. In the course of reviewing the rule relating to the procedure for the adoption of rules, the department identified a minor change that needs to be made.
Amendments to §1.11, Petition, correct the reference to the Administrative Procedure Act and for convenience provide a citation to the part of the act that relates to initiating rulemaking proceedings.
COMMENTS
No comments on the proposed amendments were received.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department.
CROSS REFERENCE TO STATUTE
Government Code, Chapter 2001, Subchapter B.
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 December 18, 2008.
TRD-200806573
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: January 7, 2009
Proposal publication date: October 10, 2008
For further information, please call: (512) 463-8683
The Texas Department of Transportation (department) adopts amendments to §17.3, Motor Vehicle Certificates of Title, §17.22, Motor Vehicle Registration, and §17.28, Specialty License Plates, Symbols, Tabs, and Other Devices. The amendments to §§17.3, 17.22, and 17.28 are adopted without changes to the proposed text as published in the October 10, 2008, issue of the Texas Register (33 TexReg 8485) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
The amendments are necessary to update and clarify existing information. In 2003, the Legislature amended Transportation Code, §551.303 authorizing the use of neighborhood electric vehicles (NEVs) on roadways posted with speeds of 35 miles per hour or less. The department was authorized to adopt rules relating to the registration and issuance of license plates for these vehicles in new Transportation Code, §551.302. In 2005, the Legislature added a definition for NEV to Transportation Code, §551.301. This definition corresponds with the federal definition. The rules set out the department's policy regarding NEVs.
The department reviewed the timelines for replacement plates in order to decrease costs and to eliminate unnecessary replacements which, in turn, reduces waste. The amendments to §17.22 eliminate the requirement for cancellation of a license plate upon receipt of one public complaint about the alpha-numeric pattern; and standardize when general issue, personalized, or specialty license plates are reissued at no charge with the time period that all general issue and personalized plates are scheduled to be replaced.
Amendments to §17.28 clarify the re-use of license plates that were issued the same year as the year model of an Antique, Classic Motor Vehicle, or Classic Travel Trailer; standardize when personalized or specialty license plates are reissued at no charge; clarify the required proof of an organization's current non-profit status upon application for a new non-profit specialty license plate; and update the application, review, and approval process for development of new non-profit specialty license plates.
Amendments to §17.3(a), Certificates of title, add new paragraph (3) to define what constitutes an NEV and to clarify the title requirements for NEVs. An NEV must meet the standards established for low speed vehicles in Federal Motor Vehicle Safety Standard 500 (49 C.F.R. §571.500) and may be either electric or alternative fueled. An NEV is described as a four-wheeled motor vehicle that must attain a speed of at least 20 miles per hour but no more than 25 miles per hour, and that has a gross vehicle weight of less than 3,000 pounds. Subsequent paragraphs are renumbered accordingly.
Amendments to §17.3(c)(1)(A) add clause (iv) to clarify that the manufacturer's certificate of origin for a new neighborhood electric vehicle (NEV) must include a statement from the manufacturer that the vehicle meets the standards of Federal Motor Vehicle Safety Standard 500 (49 C.F.R. §571.500) for low speed vehicles. This declaration from the manufacturer is necessary to ensure the certificate of title and motor vehicle record properly identifies the vehicle as an NEV for which operation on the public roads is restricted.
Amendments to §17.22(c)(3)(B) clarify when a license plate may be cancelled or not issued due to the license plate's alpha-numeric pattern being objectionable or misleading. Other amendments to §17.22(c)(3)(B) delete the provision for cancellation of a license plate as a result of receiving one public complaint about the license plate's alpha-numeric pattern being objectionable or misleading. The department believes that one complaint may not be sufficient justification to take action to cancel or not issue a license plate, and that the determination whether to cancel or not issue a license plate should be based on the number and content of the complaint or complaints received.
Amendments to §17.22(d)(7) standardize the timeframe for reissuance at no-charge of all license plates to maintain reflectivity standards established by the department and for consistency. Subparagraph (A) is deleted to eliminate the provisions for reissuance of license plates at no charge that are over five years old upon the request of the owner. This is a cost saving to the department because there is no need for replacement since the plates still meet all the appropriate standards. Additional changes accurately describe when license plates shall be issued at no charge by the county tax assessor-collectors. Currently, replacement is required when license plates are "over eight years old"; however, based on the existing method used by the department to determine the plate age of a license plate, license plates shall be replaced when they are "over seven years old from the date of issuance". Previously, the department calculated the plate age from the "renewal date" or the date the license plate was first renewed. Now the plate age is calculated based on the "birth date" or date of issuance, of the license plates. This change also establishes a uniform license plate age that requires replacement due to the possible loss of reflectivity.
Amendments to §17.22(e), replacement of license plates, symbols, tabs, and other devices, delete the requirement for a notarized affidavit when an applicant requests replacement of a plate that is lost, stolen, or mutilated. A statement to that effect continues to be required; however, the statement does not need to be notarized.
New §17.22(h) adds the requirement that neighborhood electric vehicles (NEV) be titled in order to be registered for operation on public roads, as provided by Transportation Code, §502.152. This subsection also clarifies that NEV operation on public roads is restricted and an NEV may only be operated in accordance with Transportation Code, §551.303, must display a slow-moving-vehicle emblem as provided in Transportation Code, §547.001, and is subject to all traffic and other laws applicable to motor vehicles. An NEV must comply with the evidence of financial responsibility requirements established in Transportation Code, §502.153 prior to issuance of registration and the license plate classification that will be assigned to an NEV upon registration. Subsequent subsections are redesignated accordingly.
Amendments to §17.28(c)(2) clarify when old license plates are eligible for re-use, in accordance with Transportation Code, §§504.501, 504.5011, and 504.502. New §17.28(c)(2)(A) clarifies the restrictions on use when the original license plate use was restricted to a specific vehicle type, or the original license plate was a qualifying license plate. New §17.28(c)(2)(B) clarifies that if the original license plate use was restricted to a specific vehicle type, or the original license plate was a qualifying license plate, the license plate may be used on an Exhibition Vehicle, Classic Motor Vehicle, or Classic Travel Trailer. Subsequent language on validation stickers and tabs is moved from paragraph (3) of §17.28(c) and reorganized into new paragraph §17.28(c)(2)(C) to improve readability.
Amendments to §17.28(d)(3)(E)(ii) standardize the timeframe for reissuance at no-charge of personalized and specialty license plates, to be consistent with the timeframes provided for general issue plates in §17.22(d)(7). The amendments change the reissuance period for personalized license plates from every "six years" to every "seven years" from the date of issuance and changes the reissuance period for specialty license plates from every "eight years" to every "seven years" from the date of issuance.
New §17.28(i), Development of new specialty license plates, provides the process for development of new specialty license plates, including the application requirements and process for approval of new designs submitted by non-profit organization applicants. Extensive rearrangement of the existing paragraphs is made for clarity and to improve readability. New language is added to update and clarify the application requirements, and the review and approval process.
New §17.28(i)(1), Procedure, contains the same substance as deleted §17.28(i)(1), providing a general description of the procedure and providing the statutory citation that authorizes development of new specialty license plates.
New §17.28(i)(2), Special license plate committee, contains the same substance as deleted §17.28(i)(1)(A) regarding how the specialty license plate committee is established. The schedule for committee meetings has been changed by deleting "once every six months" and adding "as needed" to allow committee meetings to be held based on the number of applications received, if any, and to decrease the non-profit's organization's waiting time.
New §17.28(i)(3), Applications for the creation of new specialty license plates, contains the same substance as deleted §17.28(i)(2)(B) regarding the requirement that an applicant submit a written application and the information that must accompany the application. This new section clarifies that certification from the Internal Revenue Service must certify that the applicant's status as a non-profit entity is current at the time of application. Additionally, a licensing agreement from the appropriate third party is required if the applicant is using a design or design element that is intellectual property.
New §17.28(i)(4), Committee review process, contains the same substance as deleted §17.28(i)(1)(B), regarding requests for additional information by the committee, the committee review of applications for license plates that are restricted to certain individuals or groups, and requiring a complete application if the application is to be considered by the committee.
New §17.28(i)(5), Request for additional information, amends the substance of deleted §17.28(i)(2)(B) to clarify that if additional information is requested by the committee, and the information is not received by the requested due date, the application will be returned as incomplete. New §17.28(i)(5)(B) is added to provide an exception that allows the committee to tentatively approve an application, pending receipt of the additional information, if the committee determines that the additional information is not critical for committee consideration and approval of the application. The department understands that some information requested by the committee is not critical to making a decision on the application, but is necessary for the committee to make a recommendation on the new specialty license plate to the executive director.
New §17.28(i)(6), Committee recommendation, contains the same substance as deleted §17.28(i)(1)(C) providing the criteria used by the committee as a basis for their recommendation for approval of a new specialty license plate design. The "projected sales of the license plate as demonstrated in the marketing plan and by the listing of target purchasers" has been deleted as an item that is taken into consideration by the committee when making a recommendation because such a restriction is not necessary as long as the deposit is made. The deposit ensures that the department will recoup its expenditures. Clarification has been added that the committee will consider whether the license plate design "appears to meet" the department's legibility and reflectivity standards, and meets the department's uniqueness standards when making their recommendation. Whether a design meets the legibility and reflectivity standards cannot be determined until an actual license plate of that design is manufactured and tested. New §17.28(i)(6)(C) clarifies that the deposit information previously included in subsection (i)(3)(A) must be provided before a recommendation may be made.
New §17.28(i)(7), Public comment on proposed design, contains the same substance as deleted §17.28(i)(1)(D) regarding posting of proposed specialty license plate designs on the department's website but deletes the requirement for posting notice of the new license plate design in the Texas Register for a 10-day period to receive public comments to be consistent with the postings for vendor specialty license plates. New paragraph (7) is also updated to provide current information relating to the simultaneous notification the department currently makes to all other specialty license plate organizations and their sponsoring agencies to advise of the posting and how comments must be submitted on the proposed license plate design.
New §17.28(i)(8), Final approval, contains the same provisions as deleted §17.28(i)(2)(B)(iv) and (v) regarding approval of designs recommended by the committee, and if a design is disapproved, a new application and supporting documentation must be submitted for the design to be reconsidered for approval. Additionally, the executive director of the department must currently approve new specialty license plate designs. This new paragraph expands the approval authority to allow a designee of the executive director, not below the level of division director, to approve new specialty license plate designs.
New §17.28(i)(9), Issuance of specialty plates, contains the same provisions as deleted §17.28(i)(3) that address the process once a new specialty license plate design has been approved, including the requirement for submission of either a deposit or the specified number of applications for the new license plate, as provided in Transportation Code, §504.702. Additionally, this new paragraph provides that the department has final approval of all specialty license plate designs. The department may adjust or reconfigure submitted draft designs to comply with the format of the license plate specifications. The department will not post an adjusted or reconfigured design on the department's website for additional comment.
New §17.28(i)(10), Redesign of specialty license plate, contains the same substance as deleted §17.28(i)(4) providing that the applicant may request a redesign of a previously approved specialty license plate design and that the redesigned license plate will go through the same approval process as a new specialty license plate design. "Original or a subsequent" has been deleted when referring to the applicant as this language is unnecessary. Language is added to clarify that a "redesign" replaces an existing design, including only a change to the license plate design, and does not encompass changes to the number of alpha-numeric characters or alpha-numeric pattern on the license plate, the funding recipient, or any other change that requires programming modifications. Language is also added to require that the request must be made in writing.
COMMENTS
No comments on the proposed amendments were received.
SUBCHAPTER A. MOTOR VEHICLE CERTIFICATES OF TITLE
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which authorizes the Texas Transportation Commission (commission) to promulgate rules for the conduct of the work of the department, and more specifically Transportation Code, §502.0021, which authorizes the adoption of rules to administer the registration of vehicles, Transportation Code, §502.180, which authorizes the adoption of rules for the issuance of license plate or registration insignia, Transportation Code, §504.004, which authorizes the commission to adopt rules to implement the statutes relating to specialty license plates, and Transportation Code, §551.302, which authorizes the adoption of rules relating to the registration of neighborhood electric vehicles.
CROSS REFERENCE TO STATUTE
Transportation Code, §§502.052, 502.152, 502.153, 502.180, 502.184, 504.501, 504.5011, 504.502, 504.702, 504.801, 547.001, and 551.301 - 551.303.
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 December 18, 2008.
TRD-200806574
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: January 7, 2009
Proposal publication date: October 10, 2008
For further information, please call: (512) 463-8683
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which authorizes the Texas Transportation Commission (commission) to promulgate rules for the conduct of the work of the department, and more specifically Transportation Code, §502.0021, which authorizes the adoption of rules to administer the registration of vehicles, Transportation Code, §502.180, which authorizes the adoption of rules for the issuance of license plate or registration insignia, Transportation Code, §504.004, which authorizes the commission to adopt rules to implement the statutes relating to specialty license plates, and Transportation Code, §551.302, which authorizes the adoption of rules relating to the registration of neighborhood electric vehicles.
CROSS REFERENCE TO STATUTE
Transportation Code, §§502.052, 502.152, 502.153, 502.180, 502.184, 504.501, 504.5011, 504.502, 504.702, 504.801, 547.001, and 551.301 - 551.303.
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 December 18, 2008.
TRD-200806575
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: January 7, 2009
Proposal publication date: October 10, 2008
For further information, please call: (512) 463-8683
SUBCHAPTER M. QUARRY AND PIT SAFETY
The Texas Department of Transportation (department) adopts amendments to §21.701, Purpose and Scope, §21.702, Definitions, §21.703, Form Availability, and §21.704, Fees; repeal of §21.707, Barrier Construction Standards, and new §21.707, Barrier Construction Standards; amendments to §21.708, Prohibition Against Opening Pits; repeal of §21.710, Sloping of Pit Sidewalls, and new §21.710, Sloping of Pit Sidewalls; amendments to §21.711, Safety Certificate Required, and new §21.724, Distance Between Pit and Property Line, all concerning quarry and pit safety. The amendments to §§21.701 - 21.704, 21.708, and 21.711, repeal of §21.707 and §21.710, and new §§21.707, 21.710, and 21.724 are adopted without changes to the proposed text as published in the October 10, 2008, issue of the Texas Register (33 TexReg 8494) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
The amendments to 43 TAC Chapter 21, Subchapter M clarify the requirements for operating pits and quarries to satisfy safety requirements. A new section is added to the subchapter to incorporate the requirements of Natural Resources Code, §133.901, Distance Between Pit and Property Line.
Amendments to §21.701, Purpose and Scope, are necessary to clarify that the purpose of the subchapter is to implement the Texas Aggregate Quarry and Pit Safety Act. The amendments also remove the subsection headings to conform to the style used for the subchapter.
Amendments to §21.702, Definitions, add a new definition for "active quarry or pit," which complements the defined term "inactive quarry or pit." The new term is used in a new section relating to the distance between a quarry and adjacent property. The definition of "overburden" is amended to clarify that it includes material that must be removed to extract the aggregate being quarried. The definition of "quarry" is amended to recognize that a plant is a part of the quarry only if the aggregates are processed at the site. The amendments remove the definition of "setback distance" because the term is used only in §21.708, Prohibition Against Opening Pits. That section contains the substance of the definition and the removal of the defined term eliminates the redundancy. The amendments also make changes to "unacceptable unsafe location" to conform the definition to that contained in the statute. Definitions are renumbered accordingly.
Amendments to §21.703, Form Availability, provide that various application forms applicable to the subchapter are available at the department's Internet site. This change is made for the convenience of persons who are regulated under the subchapter.
Amendments to §21.704, Fees, provide that the payment of fees must be made by a check or money order payable to the state. This change clarifies the method of accepted payment.
Existing §21.707, Barrier Construction Standards, is repealed and new §21.707 with the same heading is added. The new section requires departmental approval of barriers that are required between public roads and pits and sets the standards that are applicable to different types of barriers. The new section provides that a barrier must be maintained so that the barrier conforms to the construction standards in effect at the time the applicable safety certificate was issued. The new section conforms the rules to the standards that are currently being used by the department and provides the flexibility that is needed to allow the adoption of technological safety advances without making additional changes to the rules.
Amendments to §21.708, Prohibition Against Opening Pits, prohibit an operator who is violating the quarry and pit safety rules at one site from opening a pit at another site and require an operator who is not the owner of the site to obtain written permission of the property owner before opening a new pit. The purpose of the amendments is to improve safety by requiring the operator to be more accountable to the department and the property owner and providing additional tools to bring an operator into conformity with the quarry and pit safety rules and the Texas Aggregate Quarry and Pit Safety Act.
Existing §21.710, Sloping of Pit Sidewalls, is repealed and new §21.710 with the same heading is added. The new section revises the former rules relating to when the department will allow an operator to use sloping walls in a pit instead of placing barriers. The new section clarifies the requirements and makes them easier to understand.
Amendments to §21.711, Safety Certificate Required, clarify that the department has the duty to give written notification to the operator or land owner if an inspection indicates that a safety certificate is required.
New §21.724, Distance Between Pit and Property Line, is added to require a minimum distance of 50 feet between the edge of the consolidated material of a pit and the nearest property line that is not owned or leased by the responsible party when quarrying at the site is completed. The new section implements the requirements of Natural Resources Code, §133.901. The addition of a rule should help ensure that responsible parties are aware of the additional regulatory requirements for pits when quarrying is completed. The rule also specifies when the department will conclude that quarrying is completed at a particular quarry or pit--when the quarry or pit is no longer active as defined in the subchapter. As described earlier, the rules add a definition of active quarry or pit as being a quarry or pit that has ongoing aggregate extraction activity within the preceding 180-day period. The department's experience is that quarries and pits can have long spans of time during which no activity occurs, and there is a need for clarity concerning when the requirements of Natural Resources Code, §133.901, apply.
COMMENTS
No comments on the proposed amendments, repeals, and new sections were received.
43 TAC §§21.701 - 21.704, 21.707, 21.708, 21.710, 21.711, 21.724
STATUTORY AUTHORITY
The amendments and 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 Natural Resources Code, §133.011, which provides the commission with the authority to establish rules to implement and enforce the Texas Aggregate Quarry and Pit Safety Act (Natural Resources Code, Chapter 133).
CROSS REFERENCE TO STATUTE
Natural Resources Code, Chapter 133.
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 December 18, 2008.
TRD-200806577
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: January 7, 2009
Proposal publication date: October 10, 2008
For further information, please call: (512) 463-8683
STATUTORY AUTHORITY
The repeals 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 Natural Resources Code, §133.011, which provides the commission with the authority to establish rules to implement and enforce the Texas Aggregate Quarry and Pit Safety Act (Natural Resources Code, Chapter 133).
CROSS REFERENCE TO STATUTE
Natural Resources Code, Chapter 133.
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 December 18, 2008.
TRD-200806576
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: January 7, 2009
Proposal publication date: October 10, 2008
For further information, please call: (512) 463-8683