Proposed Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

CHAPTER 10. IGNITION INTERLOCK DEVICE

SUBCHAPTER A. GENERAL PROVISIONS

The Texas Department of Public Safety (the department) proposes amendments to §10.4 and new §10.5 and §10.6, concerning General Provisions. These rule changes are necessary to implement Senate Bill 616, 86th Legislative Session. Senate Bill 616 authorizes the department to obtain fingerprints and to access and use criminal history record information that relates to those who hold or apply for authorization to act as vendors of ignition interlock devices. This authority requires the adoption of rules relating to disqualifying criminal offenses and the procedures for appeal of licensing actions based on criminal history determinations. Senate Bill 616 also requires adoption of procedures for the informal resolution of complaints against ignition interlock vendors.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the sections as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.

Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be enhanced public safety through criminal history background checks, and greater efficiency in the administrative oversight of ignition interlock vendors through the informal resolution of complaints.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; will not require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create, expand, or limit an existing regulation. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rules are in effect, the proposed rules should not impact positively or negatively the state's economy.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email to RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; Texas Transportation Code, §521.2476 which authorizes the department to adopt rules to administer the program; and Texas Government Code, Chapter 411, Subchapter Q and Subchapter R, which authorize the Public Safety Commission to adopt rules governing various regulatory programs, including the Ignition Interlock Device program.

Texas Government Code, §411.004(3); Texas Transportation Code, §521.2476; and Texas Government Code, Chapter 411, Subchapter Q and Subchapter R, are affected by this proposal.

§10.4.Informal Hearing; Settlement Conference [~~Hearings~~].

(a) A person who receives notice of the department's intention to deny an application for device approval or for vendor authorization, to suspend or revoke a vendor authorization, or to impose an administrative fine, may appeal the decision by submitting a request to appeal by mail, facsimile, or electronic mail, to the department in the manner provided on the department's Ignition Interlock Device Program website, within thirty (30) calendar days after receipt of notice of the department's proposed action. If a timely written request to appeal is not submitted, the right to an informal hearing or settlement conference, as applicable, and to a hearing before the State Office of Administrative Hearings, is waived, and the proposed action becomes final [~~A request for a hearing must be submitted in writing (by mail, facsimile, or electronic mail) within 30 calendar days of the receipt of the Notice of Denial or Revocation~~].

(b) If the action is based on the person's criminal history, an informal, telephonic hearing will be scheduled. Following the hearing, the department will either dismiss the proceedings and withdraw the proposed action, or issue a written statement of findings to the respondent either upholding or modifying the original proposed action [~~Hearings will be conducted before the State Office of Administrative Hearings, pursuant to Texas Government Code, Chapter 2001~~].

(c) If the proposed action is based on an administrative violation, or concerns the denial of an application for device approval, a settlement conference will be scheduled. The settlement conference may be conducted in person or by telephone, by agreement of the parties. Following the settlement conference, the parties will execute an agreed order, or, if no agreement is reached, the department will issue a written determination either upholding or modifying the originally proposed action.

(d) The department's findings resulting from the informal hearing, or its determination following a settlement conference, may be appealed as provided in §10.5 of this title (relating to Hearing Before the State Office of Administrative Hearings). If a written request is not submitted within thirty (30) calendar days of the date notice was received, the findings or determination shall become final.

(e) Requests for continuance must be submitted in writing at least three (3) business days prior to the scheduled hearing or conference. Requests must be based on good cause. Multiple requests may be presumed to lack good cause and may be denied on that basis.

§10.5.Hearing Before the State Office of Administrative Hearings.

(a) The department's findings following an informal hearing, or its determination following a settlement conference, may be appealed to the State Office of Administrative Hearings by submitting a request by mail, facsimile, or electronic mail, to the department in the manner provided on the department's Ignition Interlock Device website, within thirty (30) calendar days after receipt of the findings or determination.

(b) Following adequate notice of the hearing, failure of the respondent to appear at the time of hearing shall entitle the department to request from the administrative law judge an order dismissing the case from the docket and to informally dispose of the case on a default basis.

§10.6.Disqualifying Offenses.

(a) Pursuant to Texas Occupations Code, §53.021(a)(1), the department may deny an application for authorization or revoke an authorization if the applicant or vendor has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of an ignition interlock vendor, as provided in this section.

(b) The department has determined the types of offenses detailed in subsection (b)(1) - (4) of this section directly relate to the duties and responsibilities of ignition interlock device vendors. A conviction for an offense within one (1) or more of the categories in this subsection may result in the denial of an application (initial or renewal) for a vendor authorization or the revocation of an authorization. The Texas Penal Code references provided in this subsection are for illustrative purposes and are not intended to exclude similar offenses in other state or federal codes. The types of offenses directly related to the duties and responsibilities of vendors include, but are not limited to:

(1) Theft (any offense within Texas Penal Code, Chapter 31);

(2) Fraud (any offense within Texas Penal Code, Chapter 32);

(3) Bribery and Corrupt Influence (any offense within Texas Penal Code, Chapter 36); and

(4) Perjury and Other Falsification (any offense within Texas Penal Code, Chapter 37).

(c) A felony conviction for one of the offenses listed in subsection (b) of this section is disqualifying for ten (10) years from the date of the conviction.

(d) A misdemeanor conviction for one of the offenses listed in subsection (b) of this section or a substantially similar offense is disqualifying for five (5) years from the date of conviction.

(e) For the purposes of this chapter, all references to conviction are to those for which the judgment has become final.

(1) the extent and nature of the person's past criminal activity;

(2) the age of the person when the crime was committed;

(3) the amount of time that has elapsed since the person's last criminal activity;

(4) the conduct and work activity of the person before and after the criminal activity;

(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release;

(6) letters of recommendation;

(7) evidence the applicant has:

(A) maintained a record of steady employment;

(B) supported the applicant's dependents;

(D) paid all outstanding court costs, supervision fees, fines, and restitution ordered in any criminal case in which the applicant has been convicted; and

(8) any other evidence relevant to the person's fitness for the certification sought.

(g) The failure to provide the required documentation in a timely manner may result in the proposed action being taken against the application or license.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000609

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

SUBCHAPTER B. VENDOR AUTHORIZATION

37 TAC §§10.11, 10.13, 10.14, 10.17

The Texas Department of Public Safety (the department) proposes amendments to §10.11, §10.13, and §10.14 and new §10.17, concerning Vendor Authorization. These rule changes and new rule are necessary to implement Senate Bill 616, 86th Legislative Session. Senate Bill 616 authorizes the department to obtain fingerprints and to access and use criminal history record information that relates to those who hold or apply for authorization to act as vendors of ignition interlock devices. This authority requires the adoption of rules relating to disqualifying criminal offenses and the procedures for appeal of licensing actions based on criminal history determinations. Senate Bill 616 also requires adoption of procedures for the informal resolution of complaints against ignition interlock vendors. Senate Bill 616 requires changes to the date of expiration, the adoption of procedures for the informal resolution of complaints against device vendors, and the development of a penalty schedule for violations of a law or rule relating to the vendor authorization.

This proposal and new rule are made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; Texas Transportation Code, §521.2476 which authorizes the department to adopt rules to administer the program; and Texas Government Code, Chapter 411, Subchapter Q and Subchapter R, which authorize the Public Safety Commission to adopt rules governing various regulatory programs, including the Ignition Interlock Device program.

Texas Government Code, §411.004(3); Texas Transportation Code, §521.2476; and Texas Government Code, Chapter 411, Subchapter Q and Subchapter R, are affected by this proposal.

§10.11.Application; Renewal.

(a) Application for vendor authorization must be made in the manner required by the department. The application must contain all materials or information required by this chapter, and the initial inspection fee must be paid as provided in §10.15 of this title (relating to Inspections and Fees).

(b) If the applicant is an entity other than an individual, the applicant must identify each partner or shareholder who owns a 25% or greater interest in the entity, the director of the entity, and each officer of the entity who oversees the entity's regulated functions.

(1) All necessary equipment and tools for the proper installation, removal, inspection, calibration, repair, and maintenance, of the type of IID(s) to be installed or serviced by the vendor, as determined by the device manufacturer and standard industry protocols;

(2) A designated waiting area separate from the installation area, to ensure customers do not observe the installation of the IID; and

(3) Proof of liability insurance providing coverage for damages arising out of the operation or use of IIDs with a minimum policy limit of $1,000,000 per occurrence and $3,000,000 aggregate total.

(d) [~~(c)~~] If an incomplete application is received, notice will be sent to the applicant stating that the application is incomplete and specifying the information required for acceptance. The applicant has 90 [60] calendar days after receipt of notice to provide the required information and submit a complete application. If an applicant fails to furnish the documentation, the application will be considered withdrawn.

(e) [~~(d)~~] An application is complete when:

(1) It contains all of the items required pursuant to this section;

(2) All required fees have been paid; and

(3) All requests for additional information have been satisfied.

(f) The vendor authorization expires on the second anniversary of the date of original issuance. Application for renewal must be made in the manner required by the department, and must meet all requirements for an original application. The renewal application must be submitted prior to expiration.

§10.13.Denial of Application for Vendor Authorization.

(a) The department may deny an application for vendor authorization if:

(1) The applicant attempts to obtain an authorization by means of fraud, misrepresentation, or concealment of a material fact;

(2) The applicant's prior authorization has been revoked and the basis for the revocation remains;

(3) The applicant fails to satisfy the standards for equipment and facilities, or insurance, as required by this chapter; [~~, or~~]

(4) The applicant, or the applicant's partner, shareholder, director or officer as described in §10.11 of this title (relating to Application; Renewal) is disqualified under §10.6 of this title (relating to Disqualifying Offenses); or

(5) [~~(4)~~] Otherwise violates the Act or this chapter.

(b) The denial will become final on the thirtieth calendar day following the vendor's receipt of the notice of denial, unless the vendor requests a hearing as outlined in §10.4 of this title (relating to Informal Hearings; Settlement Conference [~~Hearings~~]).

§10.14.Reprimand, Suspension, or Revocation Of Vendor Authorization.

(a) The department may reprimand, suspend, or revoke an authorization if the vendor:

(1) Fails to submit the required reports to the department pursuant to §10.12 of this title (relating to Vendor Standards);

(2) Willfully or knowingly submits false, inaccurate, or incomplete information to the department;

(3) Violates any provision of §10.12 of this title;

(4) Fails to pay the annual inspection fee as provided in §10.15 (relating to Inspections and Fees);

(5) Violates any law of this state relating to the conduct of business in this state; [or]

(6) Is determined to be disqualified, or if a vendor's partner, shareholder, director or officer as described in §10.11 of this title (relating to Application; Renewal) is disqualified, under §10.6 of this title (relating to Disqualifying Offenses); or

(7) [~~(6)~~] Otherwise violates the Act or this chapter.

(b) Prior to taking action against an authorization for a violation of subsection (a) of this section, the department will provide notice pursuant to §10.3 of this title (relating to Notice).

(c) The department's determination to revoke an authorization for any administrative, noncriminal history based violation may be based on the [~~following~~] considerations described in paragraphs (1) - (6) of this subsection:

(1) The seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(2) The economic harm to property or the public caused by the violation;

(3) The effect of the violation on the efficient administration of the program;

(4) The history of previous violations, including any warnings or other attempts to gain compliance;

(5) Efforts to correct the violation; and

(6) Any other matter that justice may require.

(d) The revocation will become final on the thirtieth calendar day following the vendor's receipt of the notice of revocation, unless the vendor requests a hearing as outlined in §10.4 of this title (relating to Informal Hearings; Settlement Conference [~~Hearings~~]).

(e) The revocation proceeding may be dismissed, or the revocation may be probated, upon a showing of compliance.

§10.17.Administrative Penalties.

(a) In addition to or in lieu of discipline imposed pursuant to §10.14 of this title (relating to Reprimand, Suspension, and Revocation of Vendor Authorization) the department may impose an administrative penalty on a person who violates this chapter or the Act.

(b) The graphic in this subsection reflects the department's penalty schedule applicable to administrative penalties imposed under this section. For any violation not expressly addressed in the penalty schedule, the department may impose a penalty not to exceed $500.00 for the first (1st) violation. For the second (2nd) violation within the preceding one (1) year period, the penalty may not exceed $1,000.00.

Figure: 37 TAC §10.17(b) (.pdf)

(c) Upon receipt of a notice of administrative penalty under this section, a person may request a hearing before the department pursuant to §10.4 of this title (relating to Informal Hearing; Settlement Conference). The failure to timely appeal the proposed action will result in the issuance of a final order.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000610

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

SUBCHAPTER D. IGNITION INTERLOCK DEVICE APPROVAL

37 TAC §10.32

The Texas Department of Public Safety (the department) proposes amendments to §10.32, concerning Denial of Request for Approval; Revocation of Device Approval. This rule change is a non-substantive change to the title of a cross-referenced rule. The latter rule's title is being changed as part of the department's implementation of Senate Bill 616, 86th Legislative Session.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of enforcing the rule will be enhanced public safety through criminal history background checks, and greater efficiency in the administrative oversight of ignition interlock vendors through the informal resolution of complaints.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; will not require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create, expand, or limit an existing regulation. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rule is in effect, the proposed rule should not impact positively or negatively the state's economy.

Texas Government Code, §411.004(3); Texas Transportation Code, §521.2476; and Texas Government Code, Chapter 411, Subchapter Q and Subchapter R, are affected by this proposal.

§10.32.Denial of Request for Approval; Revocation of Device Approval.

(a) A request for device approval may be denied if the device fails to meet the requirements for approval.

(b) Prior approval of a device may be revoked if changes in National Highway Traffic Safety Administration model specifications are such that the device no longer meets the requirements for approval.

(c) Denial of a request for device model approval, or revocation of a prior approval, may be appealed as provided in §10.4 of this title (relating to Informal Hearing; Settlement Conference [~~Hearings~~]).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000612

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

CHAPTER 23. VEHICLE INSPECTION

SUBCHAPTER A. VEHICLE INSPECTION STATION AND VEHICLE INSPECTOR CERTIFICATION

37 TAC §§23.1, 23.3, 23.5, 23.6

The Texas Department of Public Safety (the department) proposes amendments to §§23.1, 23.3, 23.5, and 23.6, concerning Vehicle Inspection and Vehicle Inspector Certification. These rule changes are in part necessary to implement Senate Bill 616, 86th Legislative Session, which amends Texas Transportation Code, Chapter 548. The proposed changes to §23.5, concerning Vehicle Inspection Station and Vehicle Inspector Disqualifying Criminal Offenses, implement House Bill 1342, 86th Legislative Session, which amended Occupations Code, §§53.021, 53.022, and 53.023. The proposed changes to §23.6, concerning Training, clarify the department's authority to provide online training for vehicle inspectors.

Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be the effective implementation of legislation, and greater public safety as a result of enhanced background checks of vehicle inspectors and inspection station owners.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create, expand, or limit an existing regulation. The proposed rulemaking does decrease the number of individuals subject to its applicability. During the first five years the proposed rule is in effect, the proposed rule should positively impact the state's economy.

This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; Texas Transportation Code, §548.002, which authorizes the Department of Public Safety to adopt rules to enforce Chapter 548; Texas Transportation Code, §548.410, which authorizes the Department of Public Safety to adopt rules establishing the expiration dates of inspector and station certificates; and Texas Transportation Code, §§ 548.506 and 548.507, which authorizes the Public Safety Commission to adopt rules establishing fees for certification as a vehicle inspector, and as an inspection station, respectively.

Texas Government Code, §411.004(3), and Texas Transportation Code, §§548.002, 548.410, 548.506, and 548.507 are affected by this proposal.

§23.1.New or Renewal Vehicle Inspection Station Applications.

(a) Applicants for new or renewal vehicle inspection station certification must apply in a manner prescribed by the department.

(b) By submitting a new or renewal vehicle inspection station application form, the applicant agrees to allow the department to conduct background checks as authorized by law.

(c) A new or renewal vehicle inspection station application must include, but is not limited to, the items listed in paragraphs (1) - (3) of this subsection:

(1) Criminal history disclosure of all convictions, if the applicant is an entity other than an individual, the executive officer or other individual specifically authorized by the entity to sign the application[~~and deferred adjudications for each owner or designee engaged in the regular course of business as a vehicle inspection station~~];

(2) Proof of ownership and current status as required by the department. Such proof includes, but is not limited to, a current Certificate of Existence or Certificate of Authority from the Texas Secretary of State and a Certificate of Good Standing from the Texas Comptroller of Public Accounts; and

(3) Payment of the [~~All fees required pursuant to Texas Transportation Code, Chapter 548 (the Act). The~~] vehicle inspection station nonrefundable new and renewal application fee of $100 [~~is nonrefundable~~].

(d) If an incomplete new or renewal vehicle inspection station application is received, notice will be sent to the applicant stating [~~that~~] the application is incomplete and specifying the information required for completion.

(e) The new or renewal vehicle inspection station applicant has 60 calendar days after receipt of notice to provide the required information and submit a complete application. If an applicant fails to furnish the information [~~documentation~~], the application will be considered withdrawn and a new application must be submitted.

(f) A new or renewal vehicle inspection station application is complete when:

(1) It contains all items required by the department.

(2) It conforms to the Act, this chapter and the Texas vehicle inspection program's instructions.

(3) All fees are [~~have been~~] paid pursuant to the Act and this chapter.

(4) All requests for additional information are [~~have been~~] satisfied.

(g) The vehicle inspection station certificate will expire on August 31 of the odd numbered year following the date of issuance and is renewable every two years thereafter.

(h) A renewal of the vehicle inspection station certification issued by the department is conditional upon the receipt of criminal history record information.

(i) For a new or renewal vehicle inspection station application to be approved, the owner must:

(1) be at least 18 years of age;

(2) provide proof of identification as required by the department;

(3) not be currently suspended or revoked in the Texas vehicle inspection program;

(4) complete department provided training;

(5) have a facility that meets the standards for the appropriate class set forth in this chapter;

(6) have equipment that meets the standards set forth in §23.13 of this title (relating to Equipment Requirements for All Classes of Vehicle Inspection Stations); and

(7) meet all other eligibility criteria under the Act or this chapter.

(j) Certificate holders of vehicle inspection stations must submit a new application, including applicable fees, [~~in order~~] to change a location, or make a change of ownership.

(k) Applicants for new or renewal vehicle inspection station certification must apply for one of the classes defined in paragraphs (1) - (3) of this subsection:

(1) Public--A station open to the public performing inspections on vehicles presented by the public. Stations open to the public will not be issued a fleet vehicle inspection station license unless such stations are currently certified as a public vehicle inspection stations;

(2) Fleet--A station not providing vehicle inspection services to the public; or

(3) Government--A station operated by a political subdivision, or agency of this state.

§23.3.New or Renewal Vehicle Inspector Applications.

(a) Applicants for a new or renewal vehicle inspector certificate must apply in a manner prescribed by the department.

(b) By submitting a new or renewal vehicle inspector application form, the applicant agrees to allow the department to conduct background checks as authorized by law.

(c) A new or renewal vehicle inspector application must include, but is not limited to, the items listed in paragraphs (1) and (2) of this subsection:

(1) Criminal [~~criminal~~] history disclosure of all convictions [~~and deferred adjudications~~] of the vehicle inspector applicant; and

(2) Payment of the [~~all fees required pursuant to Texas Transportation Code, Chapter 548 (the Act). The~~] new or renewal vehicle inspector nonrefundable application fee of $25 [~~is nonrefundable~~].

(d) If an incomplete new or renewal vehicle inspector application is received, notice will be sent to the applicant stating that the application is incomplete and specifying the information required for completion.

(e) The new or renewal vehicle inspector applicant has 60 calendar days after receipt of notice to provide the required information and submit a complete application. If an applicant fails to furnish the information [~~documentation~~], the application will be considered withdrawn.

(f) A new or renewal vehicle inspector application is complete when:

(1) It contains all items required by the department.

(2) It conforms to the Act, this chapter, and the Texas vehicle inspection program's instructions.

(3) All fees are [~~have been~~] paid pursuant to the Act and this chapter.

(4) All requests for additional information are [~~have been~~] satisfied.

(g) The new or renewal vehicle inspector certificate will expire on August 31 of the even numbered year following the date of issuance and is renewable every two years thereafter.

(h) A renewal of the vehicle inspector certification issued by the department is conditional upon the receipt of criminal history record information.

(i) For a new or renewal vehicle inspector application to be approved the applicant must:

(1) be at least 18 years of age;

(2) hold a valid driver license to operate a motor vehicle in Texas;

(3) not be currently suspended or revoked in the Texas vehicle inspection program;

(4) complete department provided training as outlined in this chapter;

(5) pass with a grade of not less than 80, an examination on the Act, this chapter, and regulations of the department pertinent to the Texas vehicle inspection program;

(6) successfully demonstrate ability to correctly operate the testing devices; and

(7) meet all other eligibility criteria under the Act or this chapter.

§23.5.Vehicle Inspection Station and Vehicle Inspector Disqualifying Criminal Offenses.

(a) Vehicle inspection stations and vehicle inspectors are entrusted with ensuring the safety and fitness of vehicles traveling on the roads of Texas. Vehicle inspection stations and vehicle inspectors have constant access to and are responsible for the lawful disposition of government documents. For these reasons, the department has determined that the offenses contained within this section relate directly to the duties and responsibilities of vehicle inspection stations and vehicle inspectors certified under Texas Transportation Code, Chapter 548. The types of offenses listed in this section are general categories that include all specific offenses within the corresponding chapter of the Texas Penal Code and any such offenses regardless of the code in which they appear.

(b) The offenses listed in paragraphs (1) - (9) of this subsection are intended to provide guidance only, and are not exhaustive of either the types of offenses that may relate to vehicle inspections or the operation of a vehicle inspection station or those that are independently disqualifying under Texas Occupations Code, §53.021(a)(2) - (4). The disqualifying offenses also include those crimes under the laws of another state or the United States, if the offense contains elements that are substantially similar to the elements of a disqualifying offense under the laws of this state. Such offenses also include the "aggravated" or otherwise heightened versions of the offenses listed in paragraphs (1) - (9) of this subsection. In addition, after due consideration of the circumstances of the criminal act and its relationship to the position of trust involved in vehicle inspections or the operation of a vehicle inspection station, the department may find that a conviction not described in this section also renders a person unfit to hold a certificate as a vehicle inspector or vehicle inspection station owner. In particular, an offense that is committed in one's capacity as a vehicle inspection station owner or vehicle inspector, or an offense that is facilitated by licensure as an owner or inspector, will be considered related to the occupation and will render the person unfit to hold the certification.

(1) Arson, Criminal Mischief, and Other Property Damage or Destruction (Texas Penal Code, Chapter 28).

(2) Robbery (Texas Penal Code, Chapter 29).

(3) Burglary and Criminal Trespass (Texas Penal Code, Chapter 30).

(4) Theft (Texas Penal Code, Chapter 31).

(5) Fraud (Texas Penal Code, Chapter 32).

(6) Bribery and Corrupt Influence (Texas Penal Code, Chapter 36).

(7) Perjury and Other Falsification (Texas Penal Code, Chapter 37).

(8) Criminal Homicide (Texas Penal Code, Chapter 19).

(9) Driving Related Intoxication Offenses (Texas Penal Code, Chapter 49).

(c) A felony conviction for any such offense is disqualifying for ten years from the date of conviction, unless the offense was committed in one's capacity as a vehicle inspection station owner or vehicle inspector, or was facilitated by licensure as an owner or inspector, in which case it is permanently disqualifying. Conviction for a sexually violent offense as defined by Texas Code of Criminal Procedure, Article 62.001, or an offense listed in Texas Code of Criminal Procedure, Article 42.12 §3g or Article 42A.054, is permanently disqualifying.

[(d) A felony conviction for an offense not listed or described in this section that does not relate to the occupation is disqualifying for five years from the date of commission, pursuant to Texas Occupations Code, §53.021(a)(2).]

(d) [~~(e)~~] A Class A misdemeanor conviction for an offense listed in this section and any other offense determined by the department to directly relate to the duties and responsibilities of vehicle inspection stations or vehicle inspectors, including any unlisted offense committed in one's capacity as a vehicle inspection station owner or vehicle inspector or that was facilitated by licensure as an owner or inspector, is disqualifying for five years from the date of conviction.

(e) [~~(f)~~] A Class B misdemeanor conviction for an offense listed in this section and any other offense determined by the department to directly relate to the duties and responsibilities of vehicle inspection stations or vehicle inspectors, including any unlisted offense committed in one's capacity as a vehicle inspection station owner or vehicle inspector or that was facilitated by licensure as an owner or inspector, is disqualifying for two years from the date of conviction.

[(g) For purposes of this section, a person is convicted of an offense when an adjudication of guilt or an order of deferred adjudication for the offense is entered against the person by a court of competent jurisdiction.]

(f) [~~(h)~~] A person who is otherwise disqualified pursuant to the criteria in this section may submit documentation as detailed in paragraphs (1) - (8) of this subsection as evidence of his or her fitness to perform the duties and discharge the responsibilities of a vehicle inspection station certificate holder or vehicle inspector:

(1) the extent and nature of the person's past criminal activity;

(2) the age of the person when the crime was committed;

(3) the amount of time that has elapsed since the person's last criminal activity;

(4) the conduct and work activity of the person before and after the criminal activity;

(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release;

(6) letters of recommendation; [~~from:~~]

~~[(A) prosecutors, law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the person;]~~

~~[(B) the sheriff or chief of police in the community where the person resides; or]~~

~~[(C) any other person in contact with the convicted person;]~~

(7) evidence the applicant has:

(A) maintained a record of steady employment;

(B) supported the applicant's dependents;

(D) paid all outstanding court costs, supervision fees, fines, and restitution ordered in any criminal case in which the applicant has been convicted; and

(8) any other evidence relevant to the person's fitness for the certification sought.

(g) [~~(i)~~] The failure to provide the required documentation in a timely manner may result in the proposed action being taken against the application or license.

§23.6.Training.

(a) When attending a department [~~the department's~~] training course, the applicant must:

(1) provide [~~Provide~~] a department approved government issued photo identification;[.]

(2) not [~~Not~~] be under the influence of drugs or alcohol;[.]

(3) cooperate [~~Cooperate~~] with the classroom rules as provided by department personnel;[.]

(4) maintain [~~Maintain~~] good order and discipline during the training course; and[.]

(5) successfully [~~Successfully~~] pass the written examination.

(b) Conduct which is disruptive or unsafe shall be grounds for immediate ejection from the training course and may result in the termination of the application process.

(c) The applicant for a vehicle inspection station certification or vehicle inspector certification will be given three (3) opportunities [~~an opportunity~~] to pass the written exam [~~up to three times~~]. Failure to pass the exam within 30 days of the date of training will terminate the application process.

(d) Once a completed application for a renewal of a [an] vehicle inspection station or vehicle inspector certification is received by the department, the applicant may be required to receive training and take a test prior to recertification.

(e) Each certified vehicle inspector must qualify, by training and examination provided by the department, for one or more of the endorsements listed in paragraphs (1) - (3) of this subsection which indicate the type of vehicle inspection reports the inspector is certified to issue and the types of vehicle inspections the inspector is qualified to perform.

(1) S. May inspect any vehicle requiring a safety only vehicle inspection report, i.e., one-year, two-year, trailer, and motorcycle.

(2) C. May inspect any vehicle requiring a commercial inspection report, i.e., commercial motor vehicle and commercial trailer.

(3) E. May inspect any vehicle requiring an emissions test report, i.e., one-year safety/emissions and one-year emissions only (unique emissions test only inspection report).

(f) The department representative may, if the vehicle inspector's [~~inspector~~] performance warrants, require the [~~certified~~] vehicle inspector to take and pass all or a portion of the written [~~or demonstration~~] test [~~at any time~~], or [~~may~~] require attendance at a vehicle inspection training program. Failure to pass a required test, or refusal to comply with the department representative's request under this section, may result in suspension of the vehicle inspector's certificate. The suspension will remain in effect until the inspector passes the required test or complies with the department representative's request, whichever is applicable.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000613

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

SUBCHAPTER B. GENERAL VEHICLE INSPECTION STATION REQUIREMENTS

37 TAC §§23.12 - 23.14

The Texas Department of Public Safety (the department) proposes amendments to §§23.12 - 23.14, concerning General Vehicle Inspection Station Requirements. The proposed amendment to §23.12, concerning Standards of Conduct, implements Senate Bill 711, 86th Legislative Session, which authorizes the Department of Public Safety to include vehicle safety recall information on the Vehicle Inspection Report. The proposal requires the vehicle inspector to advise the vehicle owner or operator of the recall and any available details. The proposed amendment to §23.13, concerning Equipment Requirements for All Classes of Vehicle Inspection Stations, removes an unnecessary equipment requirement, and the proposed amendment to §23.14, concerning Vehicle Inspection Station Signage, clarifies that the requirement to post the station's hours of operation refers only to the hours vehicle inspections are offered.

Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be the effective implementation of legislation, and greater transparency regarding vehicle inspection station hours of operation.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; will not require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does expand an existing regulation. It does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rules are in effect, the proposed rules should not impact positively or negatively the state's economy.

Texas Government Code, §411.004(3), and Texas Transportation Code, §548.002, are affected by this proposal.

§23.12.Standards of Conduct.

(a) All vehicle inspection stations must record the inspection of all vehicles, whether the vehicle passed, failed, or was repaired, into the appropriate state vehicle inspection database using a department provided device at the time of that inspection.

(b) The DPS Training and Operations Manual for official vehicle inspection stations and certified vehicle inspectors must be the instruction and training guide for the operation of all vehicle inspection stations and certified vehicle inspectors. It will serve as procedure for all vehicle inspection station operations and inspections performed.

(c) Fleet and government vehicle inspection stations must not inspect vehicles owned by officers, employees, or the general public.

(d) A vehicle inspection station must have a certified and properly endorsed vehicle inspector to perform inspections in a prompt manner during posted business hours.

(e) No vehicle inspection station shall refuse to inspect a vehicle for which it is endorsed that is presented for inspection during the posted business hours.

(f) A certified vehicle inspector must conduct a complete and thorough inspection of every vehicle presented for an official inspection in accordance with this chapter and Texas Transportation Code, Chapter 548 (the Act), as authorized by the vehicle inspector's certification and by the vehicle inspection station's endorsement.

(g) A certified vehicle inspector must not use, nor be under the influence of, alcohol or drugs while on duty. Prescription drugs may be used when prescribed by a licensed physician, provided the inspector is not impaired while on duty.

(h) A certified vehicle inspector must inspect a vehicle presented for inspection within a reasonable time.

(i) A certified vehicle inspector must notify the department representative supervising the vehicle inspection station immediately if his driver license is suspended or revoked.

(j) A certified vehicle inspector must conduct each inspection in the approved inspection area of the vehicle inspection station location designated on the certificate of appointment. The road test may be conducted outside this area.

(k) The certified vehicle inspector must consult the vehicle owner or operator prior to making a repair or adjustment.

(l) Inspections may be performed by more than one certified vehicle inspector, but the inspector of record is responsible for ensuring [~~that~~] the inspection is completed in accordance with the Act and this chapter.

(m) The certified vehicle inspector must not require a vehicle owner whose vehicle has been rejected to have repairs made at a specific garage.

(n) The certified vehicle inspector must maintain a clean and orderly appearance and be courteous in his contact with the public.

(o) Any services offered in conjunction with the vehicle inspection must be separately described and itemized on the invoice or receipt.

(p) At the conclusion of the inspection, the vehicle inspector must issue a signed vehicle inspection report to the owner or operator of the vehicle indicating whether the vehicle passed or failed.

(q) If the vehicle being inspected is subject to a safety recall and has not been repaired or the repairs are incomplete, the inspector shall advise the vehicle owner or operator that the vehicle is subject to a recall, review with the vehicle owner or operator the details regarding the recall reflected on the inspection report, and advise the vehicle owner or operator that further details can be obtained from the dealer or manufacturer.

§23.13.Equipment Requirements for All Classes of Vehicle Inspection Stations.

(a) All testing equipment must be approved by the department. All testing equipment must be installed and used in accordance with the manufacturer's and department's instructions. Equipment must be arranged and located at or near the approved inspection area and readily available for use.

(b) When equipment adjustments and calibrations are needed, the manufacturer's specifications and department's instructions must be followed. Defective equipment must not be used and the vehicle inspector or station must cease performing inspections until such equipment is replaced, recalibrated or repaired and returned to an operational status.

(c) To be certified as a vehicle inspection station, the station is required to possess and maintain, at a minimum, the equipment listed in paragraphs (1) - (7) of this subsection:

(1) a measured and marked brake test area which has been approved by the department, or an approved brake testing device;

(2) a measuring device clearly indicating measurements of 12 inches, 15 inches, 20 inches, 24 inches, 54 inches, 60 inches, 72 inches and 80 inches to measure reflector height, clearance lamps, side marker lamps and turn signal lamps on all vehicles, with the exception that the 80 inch measuring device requirement does not apply to motorcycle-only vehicle inspection stations;

(3) a gauge for measuring tire tread depth;

~~[(4) a 1/4 inch round hole punch;]~~

(4) [~~(5)~~] a measuring device for checking brake pedal reserve clearance. This requirement does not apply to vehicle inspection stations with only a motorcycle endorsement;

(5) [~~(6)~~] a department approved device for measuring the light transmission of sunscreening devices. This requirement does not apply to government inspection stations, or fleet inspection stations that have provided the department biennial written certification that the station has no vehicles equipped with a sunscreening device. This requirement does not apply to vehicle inspection stations with only a motorcycle and/or trailer endorsement; and

(6) [~~(7)~~] a department approved device with required adapters for checking fuel cap pressure. The department requires vehicle inspection stations to obtain updated adapters as they become available from the manufacturer. A vehicle inspection station may not inspect a vehicle for which it does not have an approved adapter for that vehicle. This device is not required of government inspection stations or fleet inspection stations which have provided the department biennial written certification that the station has no vehicles meeting the criteria for checking gas cap pressure or that these vehicles will be inspected by a public inspection station capable of checking gas caps. This device is [~~also~~] not required of motorcycle-only or trailer-only inspection stations and certain commercial inspection stations that only inspect vehicles powered by a fuel other than gasoline.

(d) To be certified as a non-emissions vehicle inspection station, the station must have:

(1) an approved and operational electronic station interface device;

(2) a printer and supplies necessary for printing a vehicle inspection report on 8 1/2 x 11 paper; and

(3) a telephone line, or internet connection for the electronic station interface device to be used during vehicle inspections either dedicated solely for use with the electronic device, or shared with other devices in a manner approved by the department.

(e) For vehicle emissions inspection station requirements, see Subchapter E of this chapter (relating to Vehicle Emissions Inspection and Maintenance Program).

§23.14.Vehicle Inspection Station Signage.

(a) Every public vehicle inspection station must display the official vehicle inspection station sign and inspection hours [~~of operation~~] in a manner clearly visible to the public.

(b) The official vehicle inspection station sign remains the property of the department as a means of identification of the vehicle inspection station. The sign must be surrendered upon demand by the department.

(c) The department will issue only one official vehicle inspection station sign per public vehicle inspection station license issued. The sign must not be altered in any manner. Dissimilar signs may also be displayed.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000614

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

SUBCHAPTER E. VEHICLE EMISSIONS INSPECTION AND MAINTENANCE PROGRAM

37 TAC §23.51, §23.55

The Texas Department of Public Safety (the department) proposes amendments to §23.51 and §23.55, concerning Vehicle Emissions Inspection and Maintenance Program. These rule changes are necessary to address changes to the vehicle emission test requirements that took effect January 1, 2020.

The proposals remove references to vehicle emissions tailpipe tests, i.e., the Acceleration Simulation Mode (ASM) and Two-Speed Idle (TSI) tests, and the related equipment requirements. These tests, and the equipment necessary to conduct them, will no longer be necessary as of January 1, 2020. On that date the vehicles for which these tests are necessary became exempt from the state's emission inspection requirements.

On January 1, 2020, model year 1995 vehicles became exempt from the state's emissions inspection requirements pursuant to Texas Health and Safety Code §382.203(a)(2) (exempting vehicles twenty five years old or older). In addition, pursuant to federal Environmental Protection Agency regulations, model year 1996 and newer vehicles are equipped with on-board diagnostics (OBD) systems that enable emissions tests using the vehicle's computer and which render tailpipe tests unnecessary. For these reasons the tailpipe tests and the equipment necessary to conduct them are no longer be necessary as of January 1, 2020.

Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be the effective implementation of statute and compliance with the State Implementation Plan for air quality.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does limit an existing regulation. It does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rules are in effect, the proposed rules should not impact positively or negatively the state's economy.

Texas Government Code, §411.004(3), and Texas Transportation Code, §548.002 are affected by this proposal.

§23.51.Vehicle Emissions Inspection Requirements.

(a) In affected counties, to be certified by the department as a vehicle inspection station, the station must be certified by the department to perform vehicle emissions testing. This provision does not apply to vehicle inspection stations certified by the department as stations endorsed only to issue inspection reports for one or more of the listed categories of vehicles: trailer, motorcycle, commercial motor vehicle, or commercial trailer.

(b) A vehicle inspection station in a county not designated as an affected county shall not inspect a designated vehicle unless the vehicle inspection station is certified by the department to perform emissions testing, or unless the motorist presenting the vehicle signs an affidavit as prescribed by the department stating the vehicle is exempted from emissions testing. Under the exceptions outlined in paragraphs (1) - (3) of this subsection, a vehicle registered in an affected county may receive a safety inspection at a vehicle inspection station in a non-affected county.

(1) The vehicle is not a designated vehicle because it has not and will not be primarily operated in an affected county. This exception includes the subparagraphs (A) and (B) of this paragraph:

(A) Company fleet vehicles owned by business entities registered at a central office located in an affected county but operated from branch offices and locations in non-affected counties on a permanent basis.

(B) Hunting and recreational vehicles registered to the owner in an affected area, but permanently maintained on a hunting property or vacation home site in a non-affected county.

(2) The vehicle no longer qualifies as a designated vehicle because it no longer and will be no longer primarily operated in an affected county. For example, the vehicle registration indicates it is registered in an affected county, but the owner has moved, does not currently reside in, nor will primarily operate the vehicle in an affected county.

(3) The vehicle is registered in an affected county and is primarily operated in a non-affected county, but will not return to an affected county prior to the expiration of the current registration. Under this exception the vehicle will be reinspected at a vehicle inspection station certified to do vehicle emissions testing immediately upon return to an affected county. Examples of this exception include vehicles operated by students enrolled at learning institutions, vehicles operated by persons during extended vacations, or vehicles operated by persons on extended out-of-county business.

(c) All designated vehicles must be emissions tested at the time of and as a part of the designated vehicle's annual vehicle safety inspection at a vehicle inspection station certified by the department to perform vehicle emissions testing. The exceptions outlined in paragraphs (1) and (2) of this subsection apply to this provision.

(1) Commercial motor vehicles, as defined by Texas Transportation Code, §548.001, meeting the description of "designated vehicle" provided in this section. Designated commercial motor vehicles must be emissions tested at a vehicle inspection station certified by the department to perform vehicle emissions testing and must be issued an emissions test only inspection report, as authorized by Texas Transportation Code, §548.252 prior to receiving a commercial motor vehicle safety inspection report pursuant to Texas Transportation Code, Chapter 548. The emissions test only inspection report must be issued within 15 calendar days prior to the issuance of the commercial motor vehicle safety inspection report and will expire at the same time the newly issued commercial motor vehicle safety inspection report expires.

(2) Vehicles presented for inspection by motorists in counties not designated as affected counties meeting other exceptions listed in this section.

(d) A vehicle with a currently valid safety inspection report presented for an "Emissions Test on Resale" inspection shall receive an emissions test. The owner or selling dealer may choose one of two options:

(1) a complete safety and emissions test and receipt of a new inspection report; or

(2) an emissions test and receipt of the emissions test only inspection report. The emissions test only inspection report will expire at the same time as the current safety inspection report.

(e) Any vehicle not listed as an exempt vehicle that is capable of being powered by gasoline, from two years old up to and including 24 years old, presented for the annual vehicle safety inspection in affected counties will be presumed to be a designated vehicle and will be emissions tested as a part of the annual vehicle safety inspection. [~~Emissions testing will be conducted as follows:~~]

~~[(1) In all affected counties, except Travis, Williamson, and El Paso counties:]~~

[(A) All 1996 model year and newer designated vehicles, which are equipped with an onboard diagnostic (OBD) system, will be emission tested using approved OBD inspection and maintenance (I/M) test equipment.]

~~[(B) All 1995 model year and older designated vehicles will be emission tested using the acceleration simulation mode (ASM-2) I/M test equipment.]~~

[(C) Vehicles which cannot be tested using the prescribed emission testing equipment will be tested using the default methods described within this subparagraph, only as prompted by the emissions testing analyzer or as approved by the department. OBD vehicles will be tested using ASM-2 test equipment. If the vehicle cannot be tested on ASM-2 test equipment (four-wheel drive and unique transmissions), then the vehicle will be tested using approved two-speed idle (TSI) I/M test equipment.]

~~[(2) This paragraph applies to all designated vehicles in Travis, Williamson and El Paso counties.]~~

~~[(A) All 1996 model year and newer designated vehicles, which are equipped with an onboard diagnostic system, will be emission tested using approved OBD I/M test equipment.]~~

~~[(B) All 1995 model year and older designated vehicles will be emissions tested using TSI I/M test equipment.]~~

[(C) Vehicles which cannot be tested using the prescribed emission testing equipment will be tested using the following default method, only as prompted by the emissions testing analyzer or as approved by the department. OBD vehicles will be tested using TSI I/M test equipment.]

[(f) Vehicles inspected under the vehicle emissions testing program and found to meet the requirements of the program in addition to all other vehicle safety inspection requirements will be approved by the certified inspector, who will issue a unique emissions inspection report pursuant to Texas Transportation Code, §548.252. The only valid inspection report for designated vehicles shall be a unique emissions inspection report approved by the department, unless otherwise provided in this chapter.]

(f) [~~(g)~~] The department shall perform challenge tests to provide for the reinspection of a motor vehicle at the option of the owner of the vehicle as a quality control measure of the emissions testing program. A motorist whose vehicle has failed an emissions test may request a free challenge test through the department within 15 calendar days.

(g) [~~(h)~~] Federal and state governmental or quasi-governmental agency vehicles that are primarily operated in affected counties that fall outside the normal registration or inspection process shall be required to comply with all vehicle emissions I/M requirements contained in the Texas I/M State Implementation Plan (SIP).

(h) [~~(i)~~] Any motorist in an affected county whose designated vehicle has been issued an emissions related recall notice shall furnish proof of compliance with the recall notice prior to having their vehicle emissions tested at the next testing cycle. As proof of compliance, the motorist may present a written statement from the dealership or leasing agency indicating the emissions repairs have been completed.

(i) [~~(j)~~] Inspection reports previously issued in a newly affected county shall be valid and remain in effect until the expiration date thereof.

(j) [~~(k)~~] An emissions test only inspection report expires at the same time the vehicle's registration expires.

(k) [~~(l)~~] The department may perform quarterly equipment and/or gas audits on all vehicle emissions analyzers used to perform vehicle emissions tests. If a vehicle emissions analyzer fails the calibration process during the gas audit, the department may cause the appropriate vehicle inspection station to cease vehicle emissions testing with the failing emissions analyzer until all necessary corrections are made and the vehicle emissions analyzer passes the calibration process.

(l) [~~(m)~~] Pursuant to the Texas I/M SIP, the department may administer and monitor a follow up loaded mode I/M test on at least 0.1% of the vehicles subject to vehicle emissions testing in a given year to evaluate the mass emissions test data as required in Code of Federal Regulations, Title 40, §51.353(c)(3).

(m) [~~(n)~~] Vehicle owners receiving a notice from the department requiring an emission test shall receive an out-of-cycle test, if the vehicle already has a valid safety and emission inspection report. This test will be conducted in accordance with the terms of the department's notice. The results of this verification emissions inspection shall be reported (online) to the Texas Information Management System Vehicle Identification Database. Vehicles identified to be tested by the notice will receive the prescribed test regardless of the county of registration and regardless of whether the vehicle has a valid safety inspection report or a valid safety and emissions inspection report. If the vehicle has a valid safety inspection report or a valid safety and emissions inspection report, the owner may choose one of two options:

(1) a complete safety and emissions test and receipt of a new inspection report; or

(2) The emissions test only inspection report will expire at the same time as the current safety inspection report.

(n) [~~(o)~~] Pursuant to Texas Education Code, §51.207, public institutions of higher education located in affected counties may require vehicles to be emissions tested as a condition to receive a permit to park or drive on the grounds of the institution, including vehicles registered out of state.

(1) Vehicles presented under this subsection shall receive an emissions inspection and be issued a unique emissions test only inspection report:

(A) For vehicles registered in this state from counties without an emissions testing program, the emissions test only inspection report will expire at the same time as the vehicle's current safety inspection report.

(B) For vehicles registered in another state, the emissions test only inspection report will expire on the twelfth month after the month indicated on the date of the vehicle inspection report generated by the emissions inspection. Under no circumstances is the vehicle inspection station authorized to remove an out-of-state inspection and/or registration certificate, including safety, emissions, or a combination of any of the aforementioned.

(2) The vehicle inspector shall notify the operator of a vehicle presented for an emissions inspection under this subsection of the requirement to retain the vehicle inspection report as proof of emissions testing under Texas Education Code, §51.207.

§23.55.Certified Emissions Inspection Station and Inspector Requirements.

(a) To be certified by the department as an emissions inspection station for purposes of the emissions inspection and maintenance (I/M) program, the station must:

(1) be certified by the department as an official vehicle inspection station;

(2) comply with this chapter, the DPS Training and Operations Manual for Vehicle Inspection Stations and Certified Inspectors, Texas Transportation Code, Chapter 547 and Chapter 548, and regulations of the department;

(3) complete all applicable forms and reports as required by the department;

(4) purchase or lease emissions testing equipment currently certified by the Texas Commission on Environmental Quality (TCEQ) to emissions test vehicles and maintain existing emissions testing equipment to meet the certification requirements of the TCEQ;

(5) have a dedicated data transmission line for each vehicle emissions analyzer to be used to perform vehicle emissions tests; and

(6) enter into and maintain a business arrangement with the Texas Information Management System contractor to obtain a telecommunications link to the Texas Information Management System vehicle identification database for each vehicle emissions analyzer to be used to inspect vehicles as described in the Texas I/M State Implementation Plan (SIP).

(b) All public certified emissions inspection stations in affected counties[~~, excluding Travis, Williamson and El Paso counties~~] shall offer [~~both the acceleration simulated mode (ASM-2) test and~~] the onboard diagnostic (OBD) test. [Certified emissions inspection stations in these affected counties desiring to offer OBD only emission testing to the public must request a waiver as low volume emissions inspection station from a department regional manager, as provided in §23.56 of this title (relating to Waiver for Low Volume Emissions Inspection Stations). All public certified emissions inspection stations in Travis, Williamson and El Paso counties must offer both the OBD and two speed idle (TSI) test.]

(c) The fee for an emissions test must provide for one free retest for each failed initial emissions inspection, provided that the motorist has the retest performed at the same vehicle inspection station where the vehicle originally failed and the retest is conducted within 15 calendar days of the initial emissions test, not including the date of the initial emissions test.

(d) To qualify as a certified emissions inspector, an applicant must:

(1) be certified by the department as an official vehicle inspector;

(2) complete the training required for the vehicle emissions inspection program and receive the department's certification for such training;

(3) comply with the DPS Training and Operations Manual for Official Vehicle Inspection Stations and Certified Inspectors, this chapter, and other applicable rules, regulations and notices of the department; and

(4) complete all applicable forms and reports as required by the department.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000615

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

37 TAC §23.56

The Texas Department of Public Safety (the department) proposes the repeal of §23.56, concerning Waiver for Low Volume Emissions Inspection Stations. This repeal is necessary to address changes to the vehicle emission test requirements that took effect January 1, 2020.

Section 23.56 authorizes a waiver from the requirement that vehicle emissions inspection stations maintain the equipment necessary to conduct vehicle emissions tailpipe tests. These tests, and the equipment necessary to conduct them, are no longer necessary as of January 1, 2020. On that date, model year 1995 vehicles became exempt from the state's emissions inspection requirements pursuant to Texas Health and Safety Code, §382.203(a)(2) (exempting vehicles twenty five years old or older). In addition, pursuant to federal Environmental Protection Agency regulations, model year 1996 and newer vehicles are equipped with on-board diagnostics (OBD) systems that enable emissions tests using the vehicle's computer and which render tailpipe tests unnecessary. For these reasons the tailpipe tests and the equipment necessary to conduct them are no longer necessary as of January 1, 2020, and §23.56's waiver therefore is unnecessary.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this repeal is in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the repeal as proposed. There is no anticipated economic cost to individuals who are required to comply with the repeal as proposed. There is no anticipated negative impact on local employment.

Ms. Whittenton has determined that for each year of the first five-year period the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be the effective implementation of statute and compliance with the State Implementation Plan for air quality.

The department has determined this repeal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department prepared a Government Growth Impact Statement assessment for this proposed repeal. The proposed repeal does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; will not require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed repeal does limit an existing regulation. It does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed repeal is in effect, the proposed repeal should not impact positively or negatively the state's economy.

Texas Government Code, §411.004(3), and Texas Transportation Code, §548.002 are affected by this proposal.

§23.56.Waiver for Low Volume Emissions Inspection Stations.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000616

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

SUBCHAPTER F. VIOLATIONS AND ADMINISTRATIVE PENALTIES

37 TAC §23.62, §23.63

The Texas Department of Public Safety (the department) proposes amendments to §23.62 and §23.63, concerning Violations and Administrative Penalties. These rule changes are necessary to implement Senate Bill 616, 86th Legislative Session. The proposed amendments reflect Senate Bill 616's authorization for the adoption of procedures relating to the informal resolution of complaints against vehicle inspectors and inspection stations and the development of a penalty schedule for violations of a law or rule relating to the inspection of vehicles. The amendments also remove statutory references to Texas Transportation Code, §548.405 and §548.407, which were repealed by Senate Bill 616.

Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be the effective implementation of legislation and enhanced administrative efficiency relating to administrative actions against vehicle inspectors and inspection station owners.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create, expand, or limit an existing regulation. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rules is in effect, the proposed rules should not impact positively or negatively the state's economy.

This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; Texas Government Code Chapter 411, Subchapters Q and R, which authorize the Public Safety Commission to adopt rules governing various regulatory programs, including that of the Vehicle Inspection program; and Texas Transportation Code, §548.002, which authorizes the Department of Public Safety to adopt rules to enforce Chapter 548.

Texas Government Code, §411.004(3), and Texas Government Code Chapter 411, Subchapters Q and R; and Texas Transportation Code, §548.002, are affected by this proposal.

§23.62.Violations and Penalty Schedule.

(a) In [~~As provided in Texas Transportation Code, §548.405, and in~~] accordance with this section, the department may deny an application for a certificate, revoke or suspend the certificate of a person, vehicle inspection station, or inspector, place on probation, or reprimand a person who holds a certificate.

(b) The [~~Pursuant to Texas Transportation Code, §548.405(h) and (i), the~~] department will administer penalties by the category of the violation. The violations listed in this section are not an exclusive list of violations. The department may assess penalties for any violations of Texas Transportation Code, Chapter 548 (the Act), or rules adopted by the department. The attached graphic summarizes the violation categories and illustrates the method by which penalties are enhanced for multiple violations.

Figure: 37 TAC §23.62 (b) (.pdf)

[~~Figure: 37 TAC §23.62(b)~~]

(1) Category A.

(A) Issuing a vehicle inspection report without inspecting one or more items of inspection.

(B) Issuing a vehicle inspection report without requiring the owner or operator to furnish proof of financial responsibility for the vehicle at the time of inspection.

(D) Refusing to inspect a vehicle without an objective justifiable cause related to safety.

(E) Failure to properly safeguard inspection reports, department issued forms, the electronic station interface device, emissions analyzer access/identification card, and/or any personal identification number (PIN).

(F) Failure to maintain required records.

(G) Failure to have at least one certified inspector on duty during the posted hours of operations for the vehicle inspection station.

(H) Failure to display the official department issued vehicle inspection station sign, certificate of appointment, procedure chart and other notices in a manner prescribed by the department.

(I) Failure to post hours of operation.

(J) Failure to maintain the required facility standards.

(K) Issuing a vehicle inspection report to a vehicle with one failing item of inspection.

(L) Failing to enter information or entering incorrect vehicle information into the electronic station interface device or emissions analyzer resulting in the reporting of erroneous information concerning the vehicle.

(M) Failure to conduct an inspection within the inspection area approved by the department for each vehicle type.

(N) Failure of inspector of record to ensure complete and proper inspection.

(O) Failure to enter an inspection into the approved interface device at the time of the inspection.

(P) Conducting an inspection without the appropriate and operational testing equipment.

(Q) Failure to perform a complete inspection and/or issue a vehicle inspection report.

(R) Requiring repair or adjustment not required by the Act, this chapter, or department regulation.

(2) Category B.

(A) Issuing a passing vehicle inspection report without inspecting the vehicle.

(B) Issuing a passing vehicle inspection report to a vehicle with multiple failing items of inspection.

(D) Allowing an uncertified person to perform, in whole or in part, the inspection or rejection of a required item during the inspection of a vehicle.

(E) Charging more than the statutory fee.

(F) Acting in a manner that could reasonably be expected to cause confusion or misunderstanding on the part of an owner or operator presenting a vehicle regarding the relationship between the statutorily mandated inspection fee and a fee for any other service or product offered by the vehicle inspection station.

(G) Failing to list and charge for any additional services separately from the statutorily mandated inspection fee.

(H) Charging a fee, convenience fee or service charge in affiliation or connection with the inspection, in a manner that is false, misleading, deceptive or unauthorized.

(I) Inspector performing inspection while under the influence of alcohol or drugs.

(J) Inspecting a vehicle at a location other than the department approved inspection area.

(K) Altering a previously issued inspection report.

(L) Issuing a vehicle inspection report, while employed as a fleet or government inspection station inspector, to an unauthorized vehicle. Unauthorized vehicles include those not owned, leased or under service contract to that entity, or personal vehicles of officers and employees of the fleet or government inspection station or the general public.

(M) Preparing or submitting to the department a false, incorrect, incomplete or misleading form or report, or failing to enter required data into the emissions testing analyzer or electronic station interface device and transmitting that data as required by the department.

(N) Issuing a passing vehicle inspection report without inspecting multiple inspection items on the vehicle.

(O) Issuing a passing vehicle inspection report by using the emissions analyzer access/identification card, the electronic station interface device unique identifier, or the associated PIN of another.

(P) Giving, sharing, lending or displaying an emissions analyzer access/identification card, the electronic station interface device unique identifier, or divulging the associated PIN to another.

(Q) Failure of inspector to enter all required data pertaining to the inspection, including, but not limited to data entry into the emissions testing analyzer, electronic station interface device, vehicle inspection report or any other department required form.

(R) Conducting multiple inspections outside the inspection area approved by the department for each vehicle type.

(S) Issuing a passing vehicle inspection report in violation of Texas Transportation Code, §548.104(d).

(T) Vehicle inspection station owner, operator or manager directing a state certified inspector under his employ or supervision to issue a vehicle inspection report when in violation of this chapter, department regulations, or the Act.

(U) Vehicle inspection station owner, operator, or manager having knowledge of a state certified inspector under the owner's employ or supervision issuing a passing vehicle inspection report in violation of this chapter, department regulations, or the Act.

(V) Issuing a safety only inspection report to a vehicle required to undergo a safety and emissions inspection without requiring a signed and legible affidavit, approved by the department, from the owner or operator of the vehicle, in a non emissions county.

(3) Category C.

(A) Issuing more than one vehicle inspection report without inspecting the vehicles.

(B) Issuing a passing vehicle inspection report to multiple vehicles with multiple failing items of inspection.

(D) Emissions testing the exhaust or electronic connector of one vehicle for the purpose of enabling another vehicle to pass the emissions test (clean piping or clean scanning).

(E) Issuing a passing vehicle inspection report to a vehicle with multiple emissions related violations or violations on more than one vehicle.

(F) Allowing a person whose certificate has been suspended or revoked to participate in a vehicle inspection, issue a vehicle inspection report or participate in the regulated operations of the vehicle inspection station.

(G) Charging more than the statutory fee in addition to not inspecting the vehicle.

(H) Misrepresenting a material fact in any application to the department or any other information filed pursuant to the Act or this chapter.

(I) Conducting or participating in the inspection of a vehicle during a period of suspension, revocation, denial, after expiration of suspension but before reinstatement, or after expiration of inspector certification.

(J) Altering or damaging an item of inspection with the intent that the item fail the inspection.

(K) Multiple instances of preparing or submitting to the department false, incorrect, incomplete, or misleading forms or reports.

(L) Multiple instances of failing to enter complete and accurate data into the emissions testing analyzer or electronic station interface device, or failing to transmit complete and accurate data in the manner required by the department.

(4) Category D. These violations are grounds for indefinite suspension based on the temporary failure to possess or maintain an item or condition necessary for certification. The suspension of inspection activities is lifted upon receipt by the department of proof the obstacle has been removed or remedied.

(A) Failing to possess a valid driver license.

(B) Failing to possess a required item of inspection equipment.

(5) Category E. These violations apply to inspectors and vehicle inspection stations in which emission testing is required.

(A) Failing to perform applicable emissions test as required.

(B) Issuing a passing emissions inspection report without performing the emissions test on the vehicle as required.

(D) Issuing a passing emissions inspection report when the required emissions adjustments, corrections or repairs have not been made after an inspection disclosed the necessity for such adjustments, corrections or repairs.

(E) Falsely representing to an owner or operator of a vehicle that an emissions related component must be repaired, adjusted or replaced in order to pass emissions inspection.

(F) Requiring an emissions repair or adjustment not required by this chapter, department regulation, or the Act.

(G) Tampering with the emissions system or an emission related component in order to cause vehicle to fail emissions test.

(H) Refusing to allow the owner to have emissions repairs or adjustments made at a location of the owner's choice.

(I) Allowing an uncertified person to conduct an emissions inspection.

(J) Charging more than the authorized emissions inspection fee.

(K) Entering false information into an emission analyzer in order to issue an inspection report.

(L) Violating a prohibition described in §23.57 of the title (relating to Prohibitions).

(d) When assessing administrative penalties, the procedures detailed in this subsection will be observed:

(1) Multiple vehicle inspection station violations may result in action being taken against all station licenses held by the owner.

(2) The department may require multiple suspension periods be served consecutively.

(3) Enhanced penalties assessed will be based on previously adjudicated violations in the same category. Any violation of the same category committed after final adjudication of the prior violation will be treated as a subsequent violation for purposes of penalty enhancement.

(A) Category A violations are subject to a two year period of limitations preceding the date of the current violation.

(B) Under Category B, C, and E, subsequent violations are based on the number of previously adjudicated or otherwise finalized violations in the same category within the five year period preceding the date of the current violation.

(e) Certification for a vehicle inspection station may not be issued if the person's immediate family member's certification as a vehicle inspection station owner at that same location is currently suspended or revoked, or is subject to a pending administrative adverse action, unless the person submits an affidavit stating the certificate holder who is the subject of the suspension, revocation or pending action, has no, nor will have any, further involvement in the business of state inspections.

(f) A new certification for a vehicle inspection station may be issued at the same location where the previous certificate holder as an owner or operator is pending or currently serving a suspension or revocation, if the person submits an affidavit stating the certificate holder who is the subject of the suspension or revocation, has no, nor will have any, further involvement in the business of state inspections. The affidavit must contain the statement that the affiant understands and agrees that in the event the department discovers the previous certificate holder is involved in the inspection business at that location, the certificate will be revoked under Texas Transportation Code, §548.405. In addition to the affidavit, when the change of ownership of the vehicle inspection station is by lease of the building or the inspection area, the person seeking certification must provide a copy of the lease agreement included with the application for certification as an official vehicle inspection station.

(g) Reinstatement. Expiration of the suspension period does not result in automatic reinstatement of the certificate. Reinstatement must be requested by contacting the department, and this may be initiated prior to expiration of the suspension. In addition, to meet all qualifications for the certificate, the certificate holder must:

(1) pass the complete written and demonstration test when required;

(2) submit the certification fee if certification has expired during suspension; and

(3) pay all charges assessed related to the administrative hearing process, if applicable.

§23.63.Informal Hearings; Settlement Conference.

(a) A person who receives notice of the department's intention to deny an application for an inspector certificate, or to suspend or revoke an inspector or to impose an administrative penalty under §23.62 of this title (relating to Violations and Penalty Schedule), may appeal the decision by submitting a request to appeal by mail, facsimile, or electronic mail, to the department in the manner provided on the department's Vehicle Inspection Program website within thirty (30) calendar days after receipt of notice of the department's proposed action. If a written request to appeal is not submitted within thirty (30) calendar days of the date notice was received, the right to an informal hearing or settlement conference, as applicable, or a hearing before the State Office of Administrative Hearings, is waived, and the action becomes final. [certificate and seeks an administrative hearing as provided in Texas Transportation Code, §548.407(f) may choose to have an informal, preliminary hearing prior to proceeding to the administrative hearing before the State Office of Administrative Hearings (SOAH). The preliminary hearing will be conducted by telephone, by department personnel, prior to the scheduling of the SOAH hearing.]

(b) If the action is based on the person's criminal history, a preliminary, telephonic hearing will be scheduled. Following the hearing, the department will either dismiss the proceedings and withdraw the proposed action, or issue a written statement of findings to the respondent either upholding or modifying the original proposed action. [Following the informal hearing, the hearing officer will issue a written statement of findings to the person at the address on file. Unless the findings result in the dismissal of the matter and rescission of the proposed action, or the applicant or certificate holder accepts the findings and chooses to withdraw the appeal, the department will schedule the administrative hearing before SOAH.]

(c) If the proposed action is based on an administrative violation, a settlement conference will be scheduled. The settlement conference may be conducted in person or by telephone, by agreement of the parties. Following the settlement conference, the parties will execute an agreed order, or, if no agreement is reached, the department will issue a written determination either upholding or modifying the originally proposed action.

(d) The department's findings following a preliminary hearing, or its determination following a settlement conference, may be appealed to the State Office of Administrative Hearings by submitting a request by mail, facsimile, or electronic mail, to the department in the manner provided on the department's Vehicle Inspection Program website, within thirty (30) calendar days after receipt of the findings or determination. If a written request is not submitted within thirty (30) calendar days of the date notice was received, the findings or determination shall become final.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000617

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

CHAPTER 36. METALS RECYCLING ENTITIES

SUBCHAPTER A. GENERAL PROVISIONS

37 TAC §36.1

The Texas Department of Public Safety (the department) proposes amendments to §36.1, concerning Definitions. These rule changes are necessary to clarify certain terms and to enhance the department's regulatory oversight of the Metal Recycling Entities Program.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of enforcing the rule will be greater clarity and transparency in the administrative oversight of metals recycling entities.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; will not require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create, expand, or limit an existing regulation. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rule is in effect, the proposed rule should not impact positively or negatively the state's economy.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

Texas Government Code, §411.004(3), and Texas Occupations Code, §1956.013, are affected by this proposal.

§36.1.Definitions.

The terms in this section have the following meanings when used in this chapter unless the context clearly indicates otherwise:

(1) Act--Texas Occupations Code, Chapter 1956.

(2) Advisory letter--An informational notification of an alleged minor violation of statute or administrative rule for which no disciplinary action is proposed.

(3) Applicant--A person who has applied for registration under the Act.

(4) Business owner--A sole proprietor, partner, member, or other individual with a financial interest in the entity.

(5) Commission--The Public Safety Commission.

(6) Controlling interest--More than 50% ownership interest in the entity.

(7) [~~(6)~~] Department--The Texas Department of Public Safety.

(8) [~~(7)~~] Fixed location--A building or structure for which a certificate of occupancy can be issued.

(9) [~~(8)~~] Immediate family member--A parent, child, sibling, or spouse.

(10) [~~(9)~~] Military service member, military veteran, and military spouse--Have the meanings provided in Texas Occupations Code, §55.001.

(11) [~~(10)~~] On-site representative --An individual [~~A person~~] responsible for the day-to-day operation of the location.

(12) [~~(11)~~] Person--A corporation, organization, agency, business trust, estate, trust, partnership, association, holder of a certificate of registration, an individual, or any other legal entity.

(13) [~~(12)~~] Personal identification document--Has the meanings provided by Texas Occupations Code, §1956.001(8) of the Act.

(14) [~~(13)~~] Program--Texas Metals Program.

(15) [~~(14)~~] Registrant--A person who holds a certificate of registration under the Act.

(16) [~~(15)~~] Revocation--The withdrawal of authority to act as a metal recycling entity under the Act.

(17) [~~(16)~~] Statutory agent--The natural person to whom any legal notice may be delivered for each location.

(18) [~~(17)~~] Suspension--A temporary cessation of the authority to act as a metal recycling entity under the Act.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000618

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

SUBCHAPTER B. CERTIFICATE OF REGISTRATION

37 TAC §36.11

The Texas Department of Public Safety (the department) proposes amendments to §36.11, concerning Application for Certificate of Registration. These rule changes are necessary to clarify certain terms and to enhance the department's regulatory oversight of the Metal Recycling Entities Program.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; will not require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create, expand, or limit an existing regulation. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rule is in effect, the proposed rule should not impact positively or negatively the state's economy.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

Texas Government Code, §411.004(3), and Texas Occupations Code, §1956.013, are affected by this proposal.

§36.11.Application for Certificate of Registration.

(a) A certificate of registration may only be obtained through the department's online application process.

(b) The application for certificate of registration must include, but is not limited to:

(1) Criminal history disclosure of all convictions for the owner with a controlling interest in the business, or if no owner has a controlling interest in the business, for the entity's on-site representative [~~and deferred adjudications for each person listed as a business owner engaged in the regular course of business of a metal recycling entity on the application~~];

(2) Proof of ownership and current status as required by the department, including but not limited to, a current Certificate of Existence or Certificate of Authority from the Texas Office of the Secretary of State and a Certificate of Good Standing from the Texas Comptroller of Public Accounts;

(3) All fees required pursuant to §36.17 of this title (relating to Fees);

(4) A copy of any license or permit required by a county, municipality, or political subdivision of this state in order to act as a metal recycling entity in that county or municipality, issued to the applicant;

(5) Proof of training pursuant to §36.34 of this title (relating to Texas Metals Program Recycler Training); and

(6) A statutory agent disclosure pursuant to §36.12 of this title (relating to Statutory Agent Disclosure).

(c) Applicants proposing to conduct business at more than one (1) location must complete an application for each location and obtain a certificate of registration for each location. An applicant proposing to conduct business at more than one (1) location is only required to comply with the requirement of subsection (b)(5) of this section for the initial location at which the applicant is [~~they are~~] seeking to conduct business.

(d) A new certificate of registration for a metals recycling entity may not be issued if the applicant's immediate family member's registration as a metals recycling entity, at that same location, is currently suspended or revoked, or is subject to a pending administrative action, unless the applicant submits an affidavit stating the family member who is the subject of the suspension, revocation or pending action, has no, nor will have any, direct involvement or influence in the business of the metals recycling entity.

(e) A new certificate of registration may be issued at the same location where a previous owner's registration as a metals recycling entity is currently suspended, [~~pending or currently serving a suspension, revocation, or~~] is subject to a pending administrative action, or was previously revoked, if the applicant submits an affidavit stating the previous owner who is the subject of the suspension, revocation, or other pending administrative action, [~~has no, nor~~] will have no [~~any,~~] direct involvement or influence in the business of the metals recycling entity. The affidavit must contain the statement that the affiant understands and agrees that in the event the department discovers the previous registration holder is involved in the business of metals recycling entity at that location, the certificate of registration will be revoked pursuant to §36.53 of this title (relating to Revocation of a Certificate of Registration). In addition to the affidavit, when the change of ownership of the metals recycling entity is by lease of the location, the applicant seeking a certificate of registration must provide a copy of the lease agreement included with the application for certificate [~~certification~~] of registration.

(f) The failure of an applicant to meet any of the conditions of subsections (a) - (e) of this section will result in rejection of the application as incomplete.

(g) An applicant for a certificate of registration is not authorized to engage in any activity for which a certificate of registration is required prior to being issued a certificate of registration by the department.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000620

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

SUBCHAPTER C. PRACTICE BY CERTIFICATE HOLDERS AND REPORTING REQUIREMENTS

37 TAC §36.34, §36.36

The Texas Department of Public Safety (the department) proposes amendments to §36.34 and §36.36, concerning Practice by Certificate Holders and Reporting Requirements. These rule changes are necessary to clarify certain terms and to enhance the department's regulatory oversight of the Metal Recycling Entities Program.

Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be greater clarity and transparency in the administrative oversight of metals recycling entities.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

Texas Government Code, §411.004(3), and Texas Occupations Code, §1956.013, are affected by this proposal.

§36.34.Texas Metals Program Recycler Training.

Before receiving a certificate of registration pursuant to §36.11 of this title (relating to Application for Certificate of Registration) or renewal of certificate of registration pursuant to §36.16 of this title (relating to Renewal of Certificate of Registration), all applicants and registrants, or their on-site representative, must satisfactorily complete the department's Texas Metals Program Recycler Training. A copy of the proof of training for registrants, or their on-site representative, must be maintained at the place of business and available for inspection by anyone authorized to inspect pursuant to §1956.035(b)(2) of the Act.

§36.36.Standards of Conduct.

(a) Pursuant to §1956.035 of the Act, a metal recycling entity, and any individuals acting on behalf of the entity, shall cooperate fully with any investigation or inspection conducted by a peace officer, a representative of the department, or a representative of a county, municipality, or political subdivision that issues a license or permit under §1956.003(b) of the Act.

(b) Pursuant to §1956.035 of the Act, a metal recycling entity shall permit access during normal business hours to a person authorized to inspect.

(c) A metal recycling entity must not purchase, sell, or possess an explosive device, as defined by §1956.001(6-a) of the Act.

(d) If convicted of a disqualifying offense pursuant to §36.55 of this title (relating to Disqualifying Offenses), an applicant or registrant shall notify the department within seventy-two (72) hours of the conviction. Notification shall be made in a manner prescribed by the department.

(e) Any violation of subsection (a) - (d) of this section by a business owner, or on-site representative will be construed as a violation by the registrant.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000621

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

SUBCHAPTER E. DISCIPLINARY PROCEDURES AND ADMINISTRATIVE PROCEDURES

37 TAC §§36.51, 36.53, 36.55 - 36.57

The Texas Department of Public Safety (the department) proposes amendments to §§36.51, 36.53, 36.55, 36.56, and new §36.57, concerning Disciplinary Procedures and Administrative Procedures. These rule changes are in part necessary to clarify the scope of the department's regulatory authority, and in part to implement Senate Bill 616, 86th Legislative Session. Senate Bill 616 requires the adoption of procedures for the informal resolution of complaints against metals recycling entities. In addition, changes to §36.55 are intended to implement House Bill 1342, 86th Legislative Session, which amended Occupations Code, §§53.021, 53.022, and 53.023. Other rule changes simplify the rules or enhance the department's regulatory oversight of the Metal Recycling Entities Program.

Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be the implementation of legislation, and greater clarity and consistency in the regulation of the metals recycling industry.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

Texas Government Code, §411.004(3), and Texas Occupations Code, §1956.013, are affected by this proposal.

§36.51.Denial of Application for Certificate of Registration.

(a) The department may deny an application for a certificate of registration if:

(1) The applicant attempts to obtain a certificate of registration by means of fraud, misrepresentation, or concealment of a material fact;

(2) The applicant has sold, bartered, or offered to sell or barter a certificate of registration;

(3) The applicant or, if applicable, the applicant's on-site representative, is ineligible pursuant to §36.55 of this title (relating to Disqualifying Offenses);

(4) The applicant's certificate of registration was revoked within two (2) years prior to the date of application; or

(5) The applicant operated a metal recycling entity in violation of §1956.021 of the Act and, after notice of the violation, failed to obtain a registration required by the Act.

(b) Upon the denial of an application under this section, an applicant may request a hearing before the department pursuant to §36.56 of this title (relating to Informal Hearings).

§36.53.Revocation of a Certificate of Registration.

(a) The department may revoke a certificate of registration [~~of a person who is registered under the Act~~] if the owner with a controlling interest in the business or, if no owner has a controlling interest in the business, the entity's on-site representative [~~person~~]:

(1) Commits multiple violations of the same type pursuant to §36.52(a) of this title (relating to Advisory Letters, Reprimands and Suspensions of a Certificate of Registration);

(2) Obtains a certificate of registration by means of fraud, misrepresentation, or concealment of a material fact;

(3) Sells, barters, or offers to sell or barter a certificate of registration;

(4) Is convicted of a disqualifying felony or misdemeanor offense pursuant to §36.55 of this title (relating to Disqualifying Offenses); or

(5) Submits to the department a payment that is dishonored, reversed, or otherwise insufficient or invalid.

(b) Upon receipt of notice of revocation under this section, a person may request a hearing before the department pursuant to §36.56 of this title (relating to Informal Hearings).

§36.55.Disqualifying Offenses.

(a) Pursuant to Texas Occupations Code, §53.021(a)(1), the department may revoke a certificate of registration or deny an application for a certificate of registration if the applicant the owner with a controlling interest in the business or, if applicable, the entity's on-site representative,[~~registrant, and/or business owner thereof~~] has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of a metal recycling entity.

(b) The department has determined the types of offenses detailed in this subsection directly relate to the duties and responsibilities of metal recycling entities. A conviction for an offense within one (1) or more of the [~~following~~] categories listed in paragraphs (1) - (9) of this subsection may result in the denial of an original or renewal application [~~(initial or renewal)~~] for a certificate of registration or the revocation of a certificate of registration. The Texas Penal Code references provided in this section are for illustrative purposes and are not intended to exclude similar offenses in other state or federal codes. The types of offenses directly related to the duties and responsibilities of metal recycling entities include, but are not limited to:

(1) Arson, Criminal Mischief, and other Property Damage or Destruction (Texas Penal Code, Chapter 28);

(2) Burglary and Criminal Trespass (Texas Penal Code, Chapter 30);

(3) Theft (Texas Penal Code, Chapter 31);

(4) Fraud (Texas Penal Code, Chapter 32);

(5) Bribery and Corrupt Influence (Texas Penal Code, Chapter 36);

(6) Perjury and Other Falsification (Texas Penal Code, Chapter 37);

(7) Any violation of Texas Occupations Code, §1956.038 or §1956.040;

(8) Prohibited Weapon - Explosive Weapon (Texas Penal Code, §46.05(a)(1); and

(9) Component of Explosives (Texas Penal Code, §46.09).

(c) A felony conviction for one of the offenses listed in subsection (b) of this section, a sexually violent offense as defined by Texas Code of Criminal Procedure, Article 62.001, or an offense listed in Texas Code of Criminal Procedure, Article 42.12, §3(g) or Article 42A.054, is disqualifying for ten (10) years from the date of the conviction[~~, unless a full pardon has been granted under the authority of a state or federal official and not only by statutory effect~~].

(d) A misdemeanor conviction for one of the offenses listed in subsection (b) of this section or a substantially similar offense is disqualifying for five (5) years from the date of conviction.

(e) For the purposes of this chapter, all references to conviction are to those for which the judgment has become final.

(f) A person who is otherwise disqualified pursuant to the criteria in this section may submit documentation as detailed in paragraphs (1) - (8) of this subsection as evidence of his or her fitness to perform the duties and discharge the responsibilities of a metal recycling entity: [A certificate of registration may be revoked for the imprisonment of the registrant following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision for an offense that does not relate to the occupation of metal recycling and is disqualifying for five (5) years from the date of the conviction.]

(1) the extent and nature of the person's past criminal activity;

(2) the age of the person when the crime was committed;

(3) the amount of time that has elapsed since the person's last criminal activity;

(4) the conduct and work activity of the person before and after the criminal activity;

(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release;

(6) letters of recommendation;

(7) evidence the applicant has:

(A) maintained a record of steady employment;

(B) supported the applicant's dependents;

(D) paid all outstanding court costs, supervision fees, fines, and restitution ordered in any criminal case in which the applicant has been convicted; and

(8) any other evidence relevant to the person's fitness for the certification sought.

(g) The failure to provide the required documentation in a timely manner may result in the proposed action being taken against the application or license.

~~[(g) The department may consider the factors specified in Texas Occupations Code, §53.022 and §53.023 in determining whether to grant, deny, or revoke any certificate of registration.]~~

§36.56.Informal Hearings.

(a) A person who receives notice of the department's intention to deny an application for a certificate [~~certification~~ ] of registration, to reprimand, suspend or revoke a certificate of registration, to prohibit the registrant from paying cash for a purchase of regulated material pursuant to §1956.036(e) of the Act, or to impose an administrative penalty under §36.60 of this title (relating to Administrative Penalties), may appeal the decision by submitting a request to appeal by [~~requesting an informal hearing.~~]

[~~(b) The request for hearing must be submitted by~~] mail, facsimile, or electronic mail, to the department in the manner provided on the department's metals recycling program website within thirty (30) [~~twenty (20)~~] calendar days after receipt of notice of the department's proposed action. If a written request to appeal [~~for a hearing~~] is not submitted within thirty (30) [~~twenty (20)~~] calendar days of the date notice was received, the right to an informal hearing or settlement conference, as applicable, [~~a hearing~~] under this section or §36.57 of this title (relating to Hearings Before [~~before~~] the State Office of Administrative Hearings) is waived and action becomes final.

(d) The department's findings resulting from the informal hearing, or its determination following a settlement conference, may be appealed as provided in §36.57 of this title. If a written request is not submitted within thirty (30) calendar days of the date notice was received, the findings or determination shall become final.

~~[(c) An informal hearing will be scheduled and conducted by the department's designee.]~~

[(d) Following the informal hearing, the hearing officer will issue a written statement of findings to the person at the address on file. The result may be appealed to the State Office of Administrative Hearings as provided in §36.57 of this title.]

§36.57.Hearings Before the State Office of Administrative Hearings.

(a) The department's findings following an informal hearing, or its determination following a settlement conference, may be appealed to the State Office of Administrative Hearings by submitting a request by mail, facsimile, or electronic mail, to the department in the manner provided on the department's Metal Recycling Program website, within thirty (30) calendar days after receipt of the findings or determination.

(b) In a case before State Office of Administrative Hearings, failure of the respondent to appear at the time of hearing shall entitle the department to request from the administrative law judge an order dismissing the case from the State Office of Administrative Hearings docket and to informally dispose of the case on a default basis.

(c) In cases brought before State Office of Administrative Hearings, in the event the respondent is adjudicated as being in violation of the Act or this chapter after a trial on the merits, the department has authority to assess the actual costs of the administrative hearing in addition to the penalty imposed. Such costs include, but are not limited to, investigative costs, witness fees, deposition expenses, travel expenses of witnesses, transcription expenses, or any other costs that are necessary for the preparation of the department's case. The costs of transcriptions and preparation of the record for appeal shall be paid by the respondent.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000622

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848

37 TAC §§36.57 - 36.59

The Texas Department of Public Safety (the department) proposes the repeal of §§36.57 - 36.59, concerning Disciplinary Procedures and Administrative Procedures. The repeal of these rules is proposed in conjunction with other proposed amendments to the rules relating to hearings. The proposed amendments require the renumbering of the rules, and also provide the opportunity to repeal rules that are duplicative of other department-wide rules.

Ms. Whittenton has determined that for each year of the first five-year period the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be the implementation of legislation, and greater clarity and consistency in the regulation of the metals recycling industry.

The department prepared a Government Growth Impact Statement assessment for this proposal. The proposed repeal does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; will not require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed repeal does limit an existing regulation. It does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed repeal is in effect, the proposed repeal should not impact positively or negatively the state's economy.

Texas Government Code, §411.004(3), and Texas Occupations Code, §1956.013, are affected by this proposal.

§36.57.Hearings Before the State Office of Administrative Hearings.

§36.58.Default Judgments.

§36.59.Hearing Costs.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2020.

TRD-202000638

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 29, 2020

For further information, please call: (512) 424-5848