PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY
CHAPTER 1. ORGANIZATION AND ADMINISTRATION
SUBCHAPTER R. ACCOUNTING PROCEDURES
The Texas Department of Public Safety (the department) proposes amendments to §1.231, concerning Procedures for Vendor Protests of Procurements. The proposed amendments are necessary to change the title of the department individual to whom a solicitation, evaluation, or award of a contract may formally be protested.
Cheryl MacBride, Assistant Director, Finance, has determined that for each year of the first five-year period the rule is in effect there will be no significant fiscal implications for state or local government, or local economies.
Ms. MacBride also has determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the rule as proposed. There are no anticipated economic costs to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.
In addition, Ms. MacBride 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 current and updated rules.
The department has determined that 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 rule. Accordingly, the department is not required to complete a takings impact assessment regarding this rule.
Comments on the proposal may be submitted to Kevin Jones, Procurement and Contract Administrator/HUB Coordinator, Procurement and Contract Services, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas 78773-0230, (512) 424-5836.
The amendments are proposed 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; and Texas Government Code, §2155.076, which requires the department to develop and adopt protest procedures for resolving vendor protests relating to purchasing issues.
Texas Government Code, §411.004(3) and §2155.076 are affected by this proposal.
§1.231.Procedures for Vendor Protests of Procurements.
(a) Definitions.
(1) Working days-- ["Working days"are
] Monday through Friday, except national and state holidays
as defined by Texas Government Code, §662.003 [
of the Texas Government Code
]. When counting working days, do not
count the day of the act or event after which the ten-day period of
time begins to run. The last day of the ten-day period is included
in the count, unless the last day is a Saturday, Sunday, national
holiday or state holiday, in which event the ten-day period runs until
the end of the next day which is not a Saturday, Sunday, national
holiday or state holiday.
(2) Interested parties--All ["Interested
parties" are all] contractors who have submitted bids, offers,
responses or proposals for the contract at issue.
(b) Any actual or prospective bidder, offeror, or contractor
who is aggrieved in connection with the solicitation, evaluation,
or award of a contract, may formally protest to the assistant
director, administration [chief of finance]. Such
protests must be in writing, addressed to the assistant director,
administration [chief of finance] and filed within
ten working days after such aggrieved person knows, or should have
known, of the occurrence of the action which is protested. A protest
is considered filed when received by the assistant director,
administration [chief of finance]. Formal protests
must conform to the requirements herein and shall be resolved in accordance
with the procedure set forth herein. Copies of the protest must be
mailed or delivered by the protesting party to all other identifiable
interested parties.
(c) In the event of a timely protest under this section,
the department shall not proceed further with the solicitation or
award of the contract unless the director, after consultation with
the end user and the assistant director, administration
[chief of finance
], makes a written determination that the award
of contract without delay is necessary to protect the best interests
of the state.
(d) - (e) (No change.)
(f) The assistant director, administration [
chief of finance] shall have the authority, prior to appeal
to the director, to settle and resolve a protest concerning the solicitation
or award of a contract. The assistant director, administration
[chief of finance
] may solicit written responses to the protest
from other interested parties.
(g) If the protest is not resolved by mutual agreement,
the assistant director, administration [
chief of finance]
will issue a written determination on the protest.
(1) If the assistant director, administration
[chief of finance
] determines that no violation of rules or statutes
has occurred, the assistant director, administration
[chief of finance
] shall so inform the protesting party and other interested
parties by letter which sets forth the reasons for the determination.
(2) If the assistant director, administration [
chief of finance] determines that a violation of the rules or
statutes has occurred in a case where a contract has not been awarded,
the assistant director, administration [chief of finance]
shall so inform the protesting party and other interested parties
by letter which sets forth the reasons for the determination and the
appropriate remedial action.
(3) If the assistant director, administration [
chief of finance] determines that a violation of the rules or
statutes has occurred in a case where a contract has been awarded,
the assistant director, administration [
chief of finance]
shall so inform the protesting party and other interested parties
by letter which sets forth the reasons for the determination, which
may include ordering the contract void.
(h) The assistant director, administration's [
chief of finance's] determination on a protest may be appealed
by the protesting party to the director. The appeal shall be limited
to review of the assistant director, administration's [chief
of finance's] determination. Copies of the appeal must be mailed
or delivered by the appealing party to the other interested parties
and must contain an affidavit that such copies have been provided.
An appeal of the assistant director, administration's [chief
of finance's] determination must be in writing and must be received
in the director's office no later than ten working days after the
protestor's receipt of the assistant director, administration's [
chief of finance's] determination. The protestor is deemed to
have received the assistant director, administration's [chief
of finance's] determination upon the earliest of the following:
(1) - (3) (No change.)
(i) - (k) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 5, 2010.
TRD-201001544
Stuart Platt
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: May 16, 2010
For further information, please call: (512) 424-5848
SUBCHAPTER D. DRIVER IMPROVEMENT
The Texas Department of Public Safety (the department) proposes amendments to §15.89, concerning Moving Violations.
The 81st Legislature, 2009, enacted House Bill 3389, creating Code of Criminal Procedure, §102.022, requiring Texas state and local courts to assess a fine of ten cents for any moving violation conviction defined by Texas Transportation Code, §708.052. Section 15.89 was originally published in the April 16, 2004, issue of the Texas Register (29 TexReg 3776) to provide a definition of a moving violation and identify by rule a listing of moving violations applicable to the Driver Responsibility Program.
The department proposes these amendments to remove discontinued moving violations and to incorporate new moving violations that result in a driver being assigned points under the Driver Responsibility Program, as defined by Texas Transportation Code, §708.052.
Cheryl MacBride, Assistant Director, Finance, has determined that for each year of the first five-year period the amendments are in effect there will be no fiscal implications for state or local government or local economies.
Ms. MacBride also has determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the amendment. There are no economic costs to individuals who are required to comply with the amendment. There is no anticipated negative impact on local employment.
In addition, Ms. MacBride has also determined that for each year of the first five-year period the amendments are in effect, the public benefit anticipated will be current and updated rules.
The department has determined that 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 the risks to human health from environmental exposure.
The department has determined that Texas Government Code, Chapter 2007, does not apply to this rule. Accordingly, the department is not required to complete a takings impact assessment regarding the amendment.
Comments on the proposal may be submitted to Rebekah Hibbs, Driver License Division, Texas Department of Public Safety, P.O. Box 4087 (MSC 0300), Austin, Texas 78773; by fax to (512) 424-5233; or by email to DLDRuleComments@txdps.state.tx.us.
The amendments are proposed 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, and along with Texas Transportation Code, §708.052, which requires the department to designate offenses that constitute moving violation of the traffic law.
Texas Government Code, §411.004(3), and Texas Transportation Code, §708.052, are affected by this proposal.
§15.89.Moving Violations.
(a) (No change.)
(b) A list of traffic offenses that constitute a moving violation is available in Table 1.
(c) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 5, 2010.
TRD-201001547
Stuart Platt
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: May 16, 2010
For further information, please call: (512) 424-5848
SUBCHAPTER K. PRESERVATION OF BIOLOGICAL EVIDENCE
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Public Safety or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)
The Texas Department of Public Safety (the department) repeals §§28.171 - 28.175, concerning Preservation of Biological Evidence. Repeal of these sections is necessary due to the addition of new Subchapter E and subsequent renumbering to leave room for later expansion within Chapter 28. The repealed rules are renumbered as new §§28.181 - 28.185 in a simultaneous filing. New §28.181 and §28.184 (former §28.171 and §28.174) are proposed with nonsubstantive changes to the text of the original sections and new §§28.182, 28.183, and 28.185 (former §§28.172, 28.173, and 28.175) are proposed without changes to the text of the original sections.
Cheryl MacBride, Assistant Director, Finance, has determined that for each year of the first five-year period the repeal is in effect there will be no fiscal implications for state or local government or local economies.
Ms. MacBride has also determined that there will be no adverse economic effect on small businesses or micro-businesses 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.
In addition, Ms. MacBride 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 current and updated rules.
The department has determined that 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 the specific intent of which is to protect the environment or reduce risks 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 the 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 Texas Government Code, Chapter 2007 does not apply to this repeal. Accordingly, the department is not required to complete a takings impact assessment regarding this repeal.
Comments on the repeal may be submitted to D. Pat Johnson, Deputy Assistant Director, Crime Laboratory Service, MSC 0460, Texas Department of Public Safety, P.O. Box 4143, Austin, Texas 78765-4143, (512) 424-2143.
The repealed sections are proposed 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; and Texas Government Code, §411.052, which states the department shall adopt rules relating to the delivery, cataloging, and preservation of evidence stored under these sections.
Texas Government Code, §411.004(3) and §411.052 are affected by this proposal.
§28.171.Applicability.
§28.172.Preservation of Evidence.
§28.173.Cataloging.
§28.174.Delivery.
§28.175.Disposition of Evidence.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 5, 2010.
TRD-201001545
Stuart Platt
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: May 16, 2010
For further information, please call: (512) 424-5848
The Texas Department of Public Safety (the department) proposes new §§28.181 - 28.185, concerning Preservation of Biological Evidence. New §§28.181 - 28.185 (former §§28.171 - 28.175) set forth the preservation and transfer of biological evidence as specified in Code of Criminal Procedure, Article 38.43. New §28.181 and §28.184 (former §28.171 and §28.174) are proposed with nonsubstantive changes to the text of the original sections and new §§28.182, 28.183, and 28.185 (former §§28.172, 28.173, and 28.175) are proposed without changes to the text of the original sections.
Cheryl MacBride, Assistant Director, Finance, has determined that for each year of the first five-year period the rules are in effect, there will be no fiscal impact for state and local government or local economies.
Ms. MacBride 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 current and updated rules.
Ms. MacBride has also determined that there will be no adverse economic effect on small businesses or micro-businesses 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.
The department has determined that 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 the specific intent of which is to protect the environment or reduce risks 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 the 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 these rules. Accordingly, the department is not required to complete a takings impact assessment regarding these rules.
Comments on the proposal may be submitted to D. Pat Johnson, Deputy Assistant Director, Crime Laboratory Service, MSC 0460, Texas Department of Public Safety, P.O. Box 4143, Austin, Texas 78765-4143, (512) 424-2143.
The new sections are proposed 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; and Texas Government Code, §411.052, which states the department shall adopt rules relating to the delivery, cataloging, and preservation of evidence stored under these sections.
Texas Government Code, §411.004(3) and §411.052 are affected by this proposal.
§28.181.Applicability.
This subchapter applies to the preservation and transfer of biological evidence as specified in Article 38.43, Code of Criminal Procedure.
§28.182.Preservation of Evidence.
(a) Each item of biological evidence is to be packaged separately to prevent contamination.
(b) Each package of evidence will be labeled and marked for identification and sealed to preserve its chain-of-custody.
(c) The evidence will be stored in climate controlled conditions in a department facility, which provides security and limited access.
§28.183.Cataloging.
(a) The following information must accompany all evidence:
(1) full name of convicted person;
(2) date of offense for which he/she was convicted;
(3) county of offense;
(4) offense for which convicted;
(5) sentence that convicted person received;
(6) name of victim of offense; and
(7) name of investigating agency with agency case/incident number.
(b) The department will maintain a catalog of information on all evidence received. It will include the information in subsection (a) of this section.
§28.184.Delivery.
(a) The items of biological evidence must be packaged in a manner to avoid contamination.
(b) Each item shall be in a separate paper package completely sealed.
(c) Each package shall be labeled for identification.
(d) Multiple packages related to a single offense may be placed into one outer container (box).
(e) The sealed and labeled box may be delivered to the department warehouse site in person, by U.S. Postal Service, or by private carrier. The Department of Public Safety Crime Laboratory warehouse address will be posted on the department's web site at www.txdps.state.tx.us.
(f) The items must include a packing slip containing the cataloging information as specified in §28.183(a) of this title (relating to Cataloging).
§28.185.Disposition of Evidence.
(a) The submitting agency, prosecutor's office, or clerk's office shall notify the department at the warehouse address posted on the department's web site within 30 days of the date the inmate either completes his/her sentence, is released on parole or mandatory supervision, or dies.
(b) Upon receiving such notification, the department shall return the evidence to the submitting agency, prosecutor's office, or clerk's office.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 5, 2010.
TRD-201001546
Stuart Platt
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: May 16, 2010
For further information, please call: (512) 424-5848
The Texas Department of Public Safety (the department) proposes new Chapter 36, §§36.1 - 36.21, concerning Metals Registration, to administer Texas Occupations Code, Chapter 1956.
New §36.1 defines words used throughout Chapter 36. New §36.2 outlines the need for a current mailing and e-mail address on file with the department to aid the department in sending notice to entities.
New §36.3 sets forth how the department intends to provide notice to regulated entities and new §36.4 sets forth the procedure for regulated entities to register with the department and renew registrations.
New §36.5 outlines the requirement regarding statutory agent disclosure for purposes of legal notice. New §36.6 sets forth the procedure for which regulated entities may notify the department of a change in their ownership structure.
New §§36.7 - 36.9 outline the application review process, the length the certificate of registration is valid, and the process to renew a certificate of registration.
New §36.10 sets forth criteria for which the department will deny an application for registration.
New §36.11 and §36.12 set forth criteria for which the department will reprimand a certificate holder or suspend or revoke a certificate of registration. New §36.13 sets forth the criteria for which the department will recertify a certificate holder after a revocation.
New §36.14 outlines the method the department receives reports from regulated entities and new §36.15 sets forth disqualifying offenses for the certificate holder. New §§36.16 - 36.18 outline enforcement actions and hearing procedures.
New §36.19 sets forth the temporary location registration requirements of dealers of crafted precious metal.
New §36.20 outlines the forms the department requires regulated entities to use and new §36.21 sets forth the fees to be collected by the department.
Cheryl MacBride, Assistant Director, Finance, has determined that for each year of the first five-year period the rule is in effect, there will be no fiscal impact for state and local government or local economies. 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. MacBride 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 rules will be a reduction in metal theft.
Ms. MacBride has also determined that there will be an economic effect on small businesses and micro-businesses required to comply with the registration requirements as proposed. The projected economic impact of the proposed rule on small and micro businesses through the next two fiscal years is $500 registration fee per business.
The department has determined that 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 the specific intent of which is to protect the environment or reduce risks 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 the 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 rule. Accordingly, the department is not required to complete a takings impact assessment regarding this rule.
Comments on the proposed new rules may be submitted to Jessica Cathey, Manager, Metals Registration Program, P.O. Box 4087, Austin, Texas 78773-0245.
The new chapter is proposed 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 Occupations Code, §1956.013, which allows the commission to adopt rules establishing minimum requirements for registration and adopt required forms; and Texas Occupations Code, §1956.014, which allows the commission to prescribe fees in reasonable amounts sufficient to cover the costs of administering the Act.
Texas Government Code, §411.004(3) and Texas Occupations Code, §1956.013 and §1956.014 are affected by this proposal.
§36.1.Definitions.
(a) Act--Texas Occupations Code, Chapter 1956.
(b) Applicant--Any owner, corporate officer, and/or operator of a metal recycling entity, or a dealer of crafted precious metal who has applied for registration under the Act.
(c) Business owner--A proprietor, partner, member, or individual.
(d) Commission--The Public Safety Commission.
(e) Department--The Texas Department of Public Safety.
(f) Fixed location--A building or structure for which a certificate of occupancy can be issued.
(g) On-site representative--A person responsible for the day-to-day operation of the location.
(h) Person--A corporation, organization, agency, business trust, estate, trust, partnership, association, holder of a certificate of registration, and any other legal entity.
(i) Program--The Metals Registration Program.
(j) Registrant--A person who holds a certificate of registration covered by this chapter.
(k) Revocation--The withdrawal of authority to act as a metal recycling entity under the Act.
(l) Statutory agent--The person or entity to whom any legal notice may be delivered at each location.
(m) Suspension--A temporary cessation of the authority to act as a metal recycling entity under the Act.
§36.2.Address on File.
(a) All registrants or applicants shall at all times maintain on file with the department their current mailing and principal place of business address. The principal place of business address must be a physical address and may not be a post office box.
(b) All registrants or applicants shall at all times maintain on file with the department a current and valid electronic mail address.
(c) All registrants shall notify the department of any change of their mailing or electronic mail address by completing the Change of Address Form on the program's website prior to the effective date of the change of address.
§36.3.Notice.
(a) The department is entitled to rely on the mailing and electronic mail address currently on file for all purposes relating to notification. The failure to maintain a current mailing and electronic mail address with the department is not a defense to any action based on the registrant's or applicant's failure to respond.
(b) Service upon the registrant or applicant of notice is complete and receipt is presumed upon the date the notice is sent, if by facsimile or electronic mail, and three days following the date sent, if by regular United States mail.
(c) The department shall notify the applicant of the denial of an application for a certificate of registration or renewal application for a certificate of registration and the registrant of reprimands, suspensions, or revocations of certificates of registration by certified mail, return receipt requested.
§36.4.Application for Certificate of Registration.
(a) No metal recycling entity may operate until they have received a certificate of registration certifying a completed application and payment of fees. Any metal recycling entity that had an active free registration may continue to operate until that registration expires or for 60 days, whichever is earlier, before obtaining a certificate of registration which requires the payment of fees. A person who is required to register and who is not registered may apply for registration at any time.
(b) A certificate of registration as required by subsection (a) of this section may only be obtained by submitting an Application for Certificate of Registration (MRB 1) to the department using online forms provided by the department via the program's website at https://records.txdps.state.tx.us/DPS_WEB/MetalsNew/index.aspx.
(c) The MRB 1 includes, but is not limited to, the following:
(1) Criminal history disclosure of all convictions and deferred adjudications for each person providing a signature for the application, each person listed as a business owner engaged in the regular course of business of a metal recycling entity on the application, and each person designated as an on-site representative on the application.
(2) Proof of entity form and current status as required by the department. Such proof includes, but is not limited to:
(A) For corporations. 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.
(B) For partnerships. A Partnership Agreement signed and dated by all partners and Articles of Partnership filed with the Office of the Secretary of State.
(C) For limited liability companies. Articles of Organization, Operating Agreement, and Certificate of Organization.
(3) All fees required pursuant to §36.21 of this title (relating to Fees).
(d) Applicants conducting business at more than one location must complete an MRB 1 for each location at which the applicant proposes to conduct business and obtain a certificate of registration for each location at which the applicant proposes to conduct business.
(e) An applicant for a certificate of registration may not, within two years prior to the date of the application, have previously:
(1) had a certificate of registration revoked;
(2) obtained a certificate of registration by means of fraud, misrepresentation, or concealment of material fact;
(3) sold, bartered, or offered to sell or barter a certificate of registration; or
(4) violated §1956.040(b) of the Act.
(f) An applicant must submit a Statutory Agent Disclosure as described in §36.5 of this title (relating to Statutory Agent Disclosure (MRB 2)) along with the MRB 1.
(g) The failure of an applicant to meet any of the conditions of subsections (a) - (f) of this section will be grounds for denial of the application under §1956.151 of the Act.
§36.5.Statutory Agent Disclosure (MRB 2).
(a) The Statutory Agent Disclosure (MRB 2) form must be completed by all applicants for each location at which the applicant is seeking to conduct business. The statutory agent is the person or entity to whom any legal notice may be delivered at each location. Any entity requiring registration and designation of an agent for service with the Office of the Secretary of State must use the same agent on the MRB 2. Any person or entity for which registration and designation of an agent for service with the Secretary of State is not required must designate a natural person and a physical address where that natural person may be located.
(b) A new MRB 2 must be filed whenever the statutory agent changes.
(c) A $10 fee for filing will be charged for filing a form MRB 2 alone, without an initial application or application for renewal.
§36.6.Change in Ownership (MRB 3).
(a) A registrant must notify the department each time the ownership structure of a registrant changes by completing a Change in Ownership (MRB 3) form as soon as such a change has taken effect.
(b) The registrant must submit amended proof of entity form and status as required by the department.
(c) A $10 fee for filing will be charged for filing a form MRB 3 alone, without an initial application or application for renewal.
§36.7.Application Review.
(a) Initial review. 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.
(b) Incomplete application. The applicant has 20 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 deemed to be withdrawn by the applicant.
(c) Complete application. An application is complete when it:
(1) contains all of the items required in §36.4 of this title (relating to Application for Certificate of Registration);
(2) conforms to the Act, this chapter, and the program's instructions;
(3) all fees have been paid as provided by §36.21 of this title (relating to Fees); and
(4) all requests for additional information have been satisfied.
§36.8.Term of Certificate of Registration.
(a) A certificate of registration is valid for two years from the date of issuance.
(b) An initial certificate of registration may be extended for a period of less than 12 additional months, if an extension is necessary to evenly allocate the expiration dates of all certificates.
(c) A person whose certificate of registration has expired may not act as a metal recycling entity, represent to the public that the person is a metal recycling entity, or perform collections until the certificate has been renewed.
§36.9.Renewal of Certificate of Registration.
(a) To renew a certificate of registration, a person must submit an Application for Renewal (MRB 4) to the department using online forms provided by the department via the program's website and by submitting the appropriate renewal fee as outlined in §36.21 of this title (relating to Fees) prior to the certificate's expiration date.
(b) A person may not apply for a renewal of registration more than 45 days before the expiration date of the current certificate of registration.
(c) If a person submits a timely MRB 4, but the department has not acted upon it before the old certificate of registration expires, the old certificate of registration continues in effect until the MRB 4 is approved or denied by the department.
(d) A person continuing to conduct business as a metal recycling entity whose certificate of registration has been expired for 90 days or less may renew the certificate by paying $750 to the department.
(e) A person continuing to conduct business as a metal recycling entity whose certificate of registration has been expired for more than 90 days but less than one year may renew the certificate by paying $1,000 to the department.
(f) A person continuing to conduct business as a metal recycling entity whose certificate of registration has been expired for one year or more may not renew the certificate. This person must obtain a new certificate of registration utilizing the initial application procedure set forth in §36.4 of this title (relating to Application for Certificate of Registration), submitting the initial application fee, and paying an additional administrative penalty of $1,000.
§36.10.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 has previously been convicted of knowingly purchasing stolen regulated material pursuant to §1956.040(b) of the Act;
(4) the applicant fails to disclose the required persons involved in the regular course of the business of a metal recycling entity on the Application for Certificate of Registration pursuant to §36.4(c) of this title (relating to Application for Certificate of Registration); or
(5) the applicant has been convicted of a felony or misdemeanor offense as outlined in §36.15 of this title (relating to Disqualifying Offenses).
(b) Upon the denial of an application under this section, an applicant may request a hearing before the department as outlined in §36.17 of this title (relating to Informal Hearings).
§36.11.Reprimands and Suspensions of a Certificate of Registration.
(a) The department may reprimand a person who is registered under the Act or suspend a certificate of registration of a person who is registered under the Act if the person:
(1) fails to submit the required reports to the department pursuant to §36.14 of this title (relating to Reporting Requirements);
(2) willfully or knowingly submits false, inaccurate, or incomplete information to the department on the reports submitted pursuant to §36.14 of this title;
(3) fails to preserve the records required pursuant to §1956.034 of the Act; or
(4) violates the Act or this chapter.
(b) For a first time violation of subsection (a) of this section, the person may receive a written reprimand in the form of a letter notifying the person of the violation and directing the person to immediately remedy the violation.
(c) For a second violation of subsection (a) of this section within the preceding two year period, the person's certificate of registration may be suspended for a period of no less than three months.
(d) For a third violation of subsection (a) of this section within the preceding two year period, the person's certificate of registration may be suspended for a period of no less than six months.
(e) Upon the suspension of a certificate of registration under this section, a person may request a hearing before the department as outlined in §36.17 of this title (relating to Informal Hearings).
§36.12.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 person:
(1) commits multiple violations of the same type as outlined in §36.11(a) of this title (relating to 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 knowingly purchasing stolen regulated material pursuant to §1956.040(b) of the Act;
(5) is convicted of a felony or misdemeanor offense as outlined in §36.15 of this title (relating to Disqualifying Offenses); or
(6) violates the Act or this chapter.
(b) Upon receipt of notice of revocation under this section, a person may request a hearing before the department as outlined in §36.17 of this title (relating to Informal Hearings).
§36.13.Recertification after Revocation.
A person whose certificate of registration has been revoked may not reapply prior to the passage of at least five years from the date of revocation. The previously revoked applicant must follow the procedures set forth in §36.4 of this title (relating to Application for Certificate of Registration) for new applications.
§36.14.Reporting Requirements.
(a) Not later than the seventh day after the date of purchase or other acquisition of regulated material for which a record is required under §1956.033 of the Act, a metal recycling entity shall collect and submit to the department a Report of Purchase for Metal Recycling Entity (MRB 5), containing:
(1) the place and date of the purchase;
(2) the name and physical address, the address may not be a post office box, of each individual from whom the regulated material is purchased or obtained;
(3) the identifying number of the seller's personal identification document;
(4) a written description made in accordance with the custom of the trade of the type and quantity of the purchased regulated material; and
(5) written documentation that the person is the legal owner of or is lawfully entitled to sell the regulated material.
(b) A completed MRB 5 shall be sent to the department by facsimile, electronic mail, or electronic upload via the program's website.
(c) If a metal recycling entity purchases bronze material that is a cemetery vase, receptacle, memorial, or statuary or a pipe that can reasonably be identified as aluminum irrigation pipe, the entity shall notify the department of the purchase by the close of the next business day by submitting an MRB 5 to the department via facsimile, electronic mail, electronic upload via the program's website, or by calling the department at the number listed on the program's website and shall file an MRB 5 with the department within five business days.
§36.15.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 on the grounds that a person 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 that the following offenses directly relate to the duties and responsibilities of metal recycling entities. A conviction for one or more of the following offenses may result in the denial of an application (initial or renewal) for a certificate of registration or the revocation of a certificate of registration. Such offenses (as reflected in the Texas Penal Code) include, but are not limited to, the following:
(1) Blackmail;
(2) Bribery;
(3) Burglary;
(4) Counterfeiting;
(5) Embezzlement;
(6) Extortion;
(7) False Pretenses;
(8) Forgery;
(9) Fraud against revenue or other government functions;
(10) Larceny (grand or petit);
(11) Mail fraud;
(12) Malicious destruction of property;
(13) Perjury;
(14) Receiving stolen goods (with guilty knowledge);
(15) Tax evasion (willful);
(16) Theft (when it involves the intention of permanent taking); and
(17) Transporting stolen property (with guilty knowledge).
(c) A felony conviction for one of the offenses listed in subsection (b) of this section that directly relates to the duties and responsibilities metal recycling entities, a sexually violent offense as defined by Code of Criminal Procedure, Article 62.001, or an offense listed in Code of Criminal Procedure, Article 42.12, §3(g), is disqualifying for ten years from the date of the conviction, unless a full pardon has been granted for reasons relating to a wrongful 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 years from the date of conviction, unless a full pardon has been granted for reasons relating to a wrongful conviction.
(e) A conviction for a felony or class A offense that does not relate to the duties and responsibilities metal recycling entities is disqualifying for five years from the date of commission, pursuant to Texas Occupations Code, §53.021(a)(2).
(f) A person's certificate of registration shall be revoked for the imprisonment of the certificate holder following a felony conviction, felony community supervision, revocation of parole, or revocation of mandatory supervision for an offense that does not relate to the occupation for which the certificate is sought and is disqualifying for five years from the date of the conviction.
(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.
§36.16.Additional and Accelerated Enforcement Actions.
(a) The department may seek any additional enforcement actions authorized by the Act, including civil penalties and injunctive relief. Operating without a required registration or any action prohibited by this chapter or by the Act is subject to additional enforcement actions.
(b) Although in §36.11 of this title (relating to Reprimands and Suspensions of a Certificate of Registration) and §36.12 of this title (relating to Revocation of a Certificate of Registration), the department outlines a graduated enforcement schedule for failing to file reports or filing false, inaccurate or incomplete information to the department under §36.14 of this title (relating to Reporting Requirements), the department may accelerate the graduated enforcement schedule if it finds that the failure to report or the filing of false, inaccurate or incomplete information was a deliberate attempt to conceal other violations under this chapter or under the Act.
§36.17.Informal Hearings.
(a) A person whose application for a certification of registration is denied, whose certificate of registration is suspended or revoked, or who is reprimanded is entitled to a hearing before the department, governed by Chapter 29 of this title (relating to Practice and Procedure) and Texas Government Code, Chapter 2001, if the person submits to the department a written request for the hearing in compliance with subsection (b) of this section.
(b) A written request for a hearing must be submitted by mail, facsimile, or e-mail, to the department within 20 calendar days after receipt of notice of denial, suspension, revocation, or reprimand. If a written request for a hearing is not made within 20 calendar days of the date notice was received, the person has waived their right to a hearing under this section.
(c) An informal hearing will be scheduled and conducted by the manager of the program or the manager's designee in the manner prescribed by the department on the program's website.
(d) After the conclusion of the informal hearing, the hearing officer will issue a written statement of findings to the person at the person's address on file.
(e) Within 20 calendar days of the date the statement of findings was received, the person may request an administrative hearing before the State Office of Administrative Hearings (SOAH).
§36.18.Hearings Before the State Office of Administrative Hearings.
(a) A request for a hearing before the State Office of Administrative Hearings (SOAH) must be submitted in writing (by mail, facsimile, or e-mail) within 20 calendar days of the receipt of the statement of findings sent to the person's address on file.
(b) Procedures for a hearing before SOAH shall follow the process set forth in Texas Government Code, Chapter 2001.
§36.19.Temporary Location Registration of Dealers of Crafted Precious Metal.
(a) A dealer of crafted precious metal is considered to be conducting business at a temporary location if the dealer buys precious metal or used items made of precious metal at a location for a period of less than 90 days.
(b) A dealer of crafted precious metal who conducts business at a temporary location must complete and submit a Temporary Location Registration Statement (MRB 6) and the required fee in the manner prescribed by the department on the program's website within a 12 month period at least 30 days before a purchase is made at a temporary location.
(c) The MRB 6 must contain:
(1) the name and address of the dealer;
(2) the location where the business is to be conducted;
(3) the time period, including hours of operation, that business is to be conducted at the temporary location;
(4) a description of the specific nature of the business to be conducted at the temporary location;
(5) if the dealer is an association, the name and address of each member of the association; and
(6) if the dealer is a corporation, the name and address of each officer and director of the corporation.
(d) Upon completion of the MRB 6 and the submission of the required fee, a dealer of crafted precious metal may obtain a certificate of registration in the manner prescribed by the department.
(e) A fee of $25 is required for each certificate of registration issued pursuant to a MRB 6.
(f) A dealer commits a criminal offense if the dealer fails to file a registration statement as required by §1956.067 of the Act.
§36.20.Forms.
The department has prescribed the following forms for purposes of administering the Act:
(1) Application for Certificate of Registration as a Metal Recycling Entity (MRB 1);
(2) Statutory Agent Disclosure (MRB 2);
(3) Change in Ownership (MRB 3);
(4) Renewal Application for Metal Recycling Entity (MRB 4);
(5) Report of Purchase for Metal Recycling Entity (MRB 5);
(6) Temporary Location Registration Statement for Dealer of Crafted Precious Metal (MRB 6);
(7) Change of Address Form (MRB 7); and
(8) Request for an Informal Hearing (MRB 8).
§36.21.Fees.
The department has prescribed the following fees for purposes of administering the Act:
(1) Initial Application. A $500 fee is assessed each time an application for a new certificate of registration is filed in accordance with §36.4 of this title (relating to Application for Certificate of Registration). Applicants conducting business at more than one location must submit a $500 fee for a new certificate of registration for the first location and an additional $500 fee for each additional location applying for a certificate of registration at the same time. These fees are non-refundable.
(2) Statutory Agent Disclosure. A $10 fee is assessed each time a Statutory Agent Disclosure form is filed alone, without an initial application or application for renewal.
(3) Change in Ownership. A $10 fee is assessed each time a Change of Ownership form is filed alone, without an initial application or application for renewal.
(4) Renewal Certificate of Registration. A $500 fee is assessed each time a certificate of registration is renewed in accordance with §36.9 of this title (relating to Renewal of Certificate of Registration). For registrants conducting business at more than one location, a $500 fee is assessed for the first location renewing a certificate of registration and an addition $500 fee is assessed for each additional location submitting a renewal at the same time. A person continuing to conduct business as a metal recycling entity whose certificate of registration has been expired for 90 days or less may renew the certificate by paying $750 to the department. A person continuing to conduct business as a metal recycling entity whose certificate of registration has been expired for more than 90 days but less than one year may renew the certificate by paying $1,000 to the department. These fees are non-refundable.
(5) Certificate of Registration for Temporary Location for Dealer of Crafted Precious Metal. A $25 fee is assessed each time a dealer of crafted precious metal is issued a certificate of registration.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 5, 2010.
TRD-201001543
Stuart Platt
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: May 16, 2010
For further information, please call: (512) 424-5848