Amendments to §21.175, Permit Fees, make the necessary changes to address the deletion of Division 2 regarding electronic signs, the removal of non-profit signs from the program and the new online application and renewal process. With the repeal of Division 2 regarding electronic signs the language regarding the fees for electronic sign permit is not necessary and has been removed. The fees for both static and electronic permits are the same. The late fee is clarified by adding language that states it is owed if the fee is not received prior to the expiration date. There has been some confusion as to when the late fee was required which should be clarified by the new language.

Amendments to §21.176, Cancellation of Permit, clarify when a permit will be cancelled. Language is added to clarify that the permit will be cancelled if the sign is accessed, erected, repaired or maintained from the right of way. The current language created an additional obstacle for enforcement by stating that the sign could not be accessed from private property. The department does not need to prove that there were no available private property accesses only that right of way was used. In addition, a new cancellation provision is added for failure to pay an administrative penalty charged. If a sign owner refuses to pay the administrative penalty for a sign violation, the next action by the department will be to cancel the permit. The department must be able to enforce the administrative penalties to improve compliance with the rules.

Due to confusion, language regarding notification of the violation and opportunity to cure the violation has been moved from §21.176 to new §21.205, Curable Commercial Sign Permit Violations. The department's enforcement actions have been challenged because the language currently says the department may cancel the permit. With the change to the new section the department is making it clear that failure to cure the violation as requested will result in cancellation. The landowner notification is deleted from §21.176, as the department has found this to be unnecessary.

Amendments to §21.177, Commercial or Industrial Area, merely replace the term "division" with "subchapter" to address the changes necessary to reflect the elimination of divisions within Chapter 21.

Amendments to §21.178, Zoned Commercial or Industrial Areas, merely replace the term "outdoor advertising" with "commercial signs" to address the changes necessary to implement SB 2006.

Amendments to §21.179, Unzoned Commercial or Industrial Areas, merely replace the term "division" with "subchapter" to address the changes necessary to reflect the elimination of divisions within Chapter 21.

Amendments to §21.180, Commercial or Industrial Activity, revise "division" and "outdoor advertising" and uses the defined term "public space" in the place of recreational facility.

Amendments to §21.181, Abandonment of Sign, streamline the process for determining if a sign has been abandoned. The current rules provide that to be abandoned a sign must be without content for one year, overgrown by vegetation, or need repairs. The amendments remove the one year requirement for advertising or copy because it is essentially a restatement of the legible content requirement and is an impediment to enforcement. The department does not inventory every sign every year. A sign could be in the state of abandonment for some time before identified by the department and having to show that the sign was in the same state for one year from the time of the initial review creates unnecessary delay. The department has found that having pictures of the sign on four separate dates without copy has not been beneficial in establishing abandonment of the sign and this language has been removed. Subsection (e), regarding the availability of the location, is deleted as unnecessary. If the sign permit is cancelled, the availability of the location for a new sign permit would be determined under the general location provisions. Subsection (h) is moved to new §21.205, Curable Commercial Sign Permit Violations. Section 21.205 provides the same 60 day notice and cure provisions that currently are in subsection (h).

Amendments to §21.182, Commercial Sign Face Size and Position, provide that an electronic sign may have two electronic sign faces but only if the faces are facing different directions. This requirement is moved from §21.155, Location, to accommodate the combining of the two divisions of this subchapter.

Amendments to §21.184, Location of Commercial Signs Near Public Spaces, replace "public park" with the newly defined term "public space."

Amendments to §21.185, Location of Commercial signs Near Certain Facilities, add the word "commercial" to the title of the section to make it consistent with the new terminology of these rules.

Amendments to §21.186, Location of Signs Near Right of Way, change the title of the section to make it consistent with the new terminology of these rules and to clarify the section applies only to state-held right of way.

Amendments to §21.187, Spacing of Commercial Signs, delete subsection (h), providing exceptions for on-premise, directional, and official signs, as unnecessary because the amended rules apply only to commercial signs.

Amendments to §21.188, Wind Load Pressure, delete the requirement that the certification be signed to accommodate the new online application process.

Amendments to §21.189, Commercial Sign Height Restrictions, implement the provisions of SB 312 regarding the height of commercial signs in existence on March 1, 2017. SB 312 added new Transportation Code §391.038, Sign Height, which states that a sign existing on March 1, 2017 may not be higher than 85 feet, excluding cut outs. Language was also added to allow signs that a sign owner could rebuild a sign that was in existence on March 1, 2017 without obtaining an amended permit provided that the sign was rebuilt at the same location and at a height that does not exceed the height the sign was on March 1, 2017. This change will not affect any signs erected after March 1, 2017. All new commercial signs will have to comply with the existing 42-1/2 maximum height. In addition, these provisions allow a sign that is 85 feet or less on March 1, 2017 be rebuilt to the exact provisions of the current sign permit with exception of the height without obtaining an amended permit. Because SB 312 relates only to height an applicable sign that is nonconforming on a basis other than height remains nonconforming. If a conforming sign owner wants to change the number of faces, lighting or other physical aspects of the sign an amended permit would be required.

Amendments to §21.190, Lighting and Movement on Commercial Signs, add provisions that were in Chapter 21, Division 2 regarding electronic signs. The amendments add no new lighting restrictions. The changes were necessary to address merger of the two divisions of Chapter 21.

Amendments to §21.191, Repair and Maintenance of commercial Signs, clarify that routine maintenance includes changing all parts of the sign structure, and not just the sign face, if the same type of materials are used. A reference to Transportation Code, §391.038, regarding the sign height requirements, is included to implement SB 2006. The statute provides that a sign existing on March 1, 2017, can remain at the height on that date up to 85 feet, regardless of the maximum height set by rule. The statute also provides an exception to obtaining an amended permit and therefore, a reference to that exception is needed in this rule.

Amendments to §21.192, Permit for Relocation of a Commercial Sign, require that a sign must be timely removed from the construction site to be eligible for the relocation provisions. Signs that remain in the construction area or that must be removed by the department are an added expense to the department. The relocation provisions are a benefit to the sign owner; however, the department believes the sign owner must meet its obligations to be eligible for this benefit. The language regarding waiving the permit fee is also removed. The relocation application requires the same amount of review as a new permit and therefore, to maintain the revenue neutral aspect of the program, the fee needs to be charged for this permit.

Amendments to §21.193, Location of Relocated Commercial Sign, replace "public park" with "public space." References to on-premise signs have been removed to comply with S.B. 2006. The amendments delete the requirement that a sign must be relocated to the same parcel of land and the requirement's exception has been removed. The department finds this restriction to be an unnecessary step in the relocation approval process. Under the amended rule a sign owner is able to find a new location that meets the requirements without having to demonstrate that the current parcel in not feasible for use.

Section 21.194, Construction and Appearance of Relocated Sign, is repealed as unnecessary. The necessary provisions of this section are addressed under the permit requirements. The department has not found a benefit in requiring the same materials be used in the new sign. An eligible sign permit can be amended to allow for different sign faces, lighting, and other features and by prohibiting these changes from this permit process is unnecessary.

Amendments to §21.195, Relocation of Commercial Sign with Certified Cities, replace "municipality" with "certified cities" in the section heading to clarify that the section applies to municipalities that are approved as certified cities under §21.200. Subsection (b) is deleted as the relocation benefits are an aspect of the purchase of the right of way and not handled the Highway Beautification Program.

Section 21.196, Relocation Benefits, is repealed as relocation benefits are an aspect of the purchase of the right of way and not the sign permit process.

Amendments to §21.197, Discontinuance of Nonconforming Commercial Sign Due to Destruction, provide for the provisions of SB 312 by adding a reference to Transportation Code, §391.038.

Amendments to §21.198, Order of Removal, provide that the department will notify the land owner of the removal requirement if the sign owner cannot be determined. This is needed for the instances in which the sign owner is no longer operating and cannot be identified. The land owner will then be responsible for the sign on the land owner's property.

Amendments to §21.199, Destruction of Vegetation and Access from Right of Way Prohibited, merely replace "division" with "subchapter."

Amendments to §21.200, Local Control of Commercial Signs, add a reference to a certified city for clarification and to use the term commonly used by the department when referring to cities that have been granted local control.

Amendments to §21.201, Fees Nonrefundable, and §21.202, Property Right Not Created, merely replace "division" with "subchapter."

Amendments to §21.203, Complaint Procedures, replace "outdoor advertising" with "highway beautification" and "sign" to address the changes required under SB 2006.

Amendments to §21.204, Administrative Penalties for Commercial Signs, remove the penalties for no permit plate because permit plates are no longer required and revise the wording of the violation for improper placement of a sign to conform to the requirements of §21.160. Subsection (d) is deleted and replaced with subsection (g) for clarity and to conform to other provisions in rules related to cancellation of a permit.

New §21.205, Curable Commercial Sign Permit Violations, is added to address confusion caused by §21.176, Cancellation of Permit. The department has identified problems with the regulated community's understanding when a notice provides a right to cure a violation. This new section provides the department with a separate action prior to the cancellation notification. If the sign owner fails to cure the violation, department will move to the cancellation provisions of §21.176, Cancellation of Permits. The department believes that providing all of the violations that can be corrected in one section will be clearer to the affected industry.

New §21.206, Requirements for An Electronic Sign, gathers provisions from various sections of Division 2 of Chapter 21, Subchapter I. The department has found that having the two divisions has led to confusion in the regulated community. Division 2 provided additional provisions for electronic signs, while each rule in Division 1 applied to an electronic sign unless the rule was in direct conflict with a provision of Division 2. Whether a provision was in direct conflict was subject to varying interpretations. With the merging of the two divisions, the department has clarified the electronic sign process. This new section does not add new requirements but rather revises current §21.257, Requirements, §21.258, Emergency Information, and §21.259, Contact Information.

Division 2, Electronic Signs; §§21.251 - 21.260, is repealed and the content of the sections in the division are merged into the appropriate commercial sign provisions of the amended rules for clarity and ease of understanding by the regulated community.

FISCAL NOTE

Brian Ragland, Chief Financial Officer, has determined that for each of the first five years in which the repeals, amendments, and new sections as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeals, amendments, and new sections.

Mr. Gus Cannon, Right of Way Division Director, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the repeals, amendments, or new sections.

PUBLIC BENEFIT AND COST

Mr. Cannon has also determined that for each year of the first five years in which the sections are in effect, the public benefit anticipated as a result of enforcing or administering the revisions will be the continuation of the Highway Beautification Program in compliance with federal requirements and consistent enforcement to the regulated community. There are no anticipated economic costs for persons required to comply with the sections as proposed. There will be no adverse economic effect on small businesses.

PUBLIC HEARING

Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed rules. The public hearing will be held at 9:00 a.m. on September 26, 2017, in the Ric Williamson Hearing Room, First Floor, Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas and will be conducted in accordance with the procedures specified in 43 TAC §1.5. Those desiring to make comments or presentations may register starting at 8:30 a.m. Any interested persons may appear and offer comments, either orally or in writing; however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views and identical or similar comments through a representative member when possible. Comments on the proposed text should include appropriate citations to sections, subsections, paragraphs, etc. for proper reference. Any suggestions or requests for alternative language or other revisions to the proposed text should be submitted in written form. Presentations must remain pertinent to the issues being discussed. A person may not assign a portion of his or her time to another speaker. Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or Braille, are requested to contact the General Counsel Division, 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-8630 at least five working days before the date of the hearing so that appropriate services can be provided.

SUBMITTAL OF COMMENTS

Written comments on the proposed repeal of §§21.146 - 21.149, 21.151, 21.165, 21.194, 21.196, and §§21.251 - 21.260; amendments to §§21.141 - 21.145, 21.150, 21.152 - 21.156, 21.158 - 21.164, 21.166 - 21.182, 21.184 - 21.193, 21.195, and §§21.197 - 21.204; and new §21.205 and §21.206, may be submitted to Rule Comments, General Counsel Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483 or to RuleComments@txdot.gov with the subject line "Commercial sign rules." The deadline for receipt of comments is 5:00 p.m. on October 16, 2017. In accordance with Transportation Code, §201.811(a)(5), a person who submits comments must disclose, in writing with the comments, whether the person does business with the department, may benefit monetarily from the proposed revisions, or is an employee of the department.

STATUTORY AUTHORITY

The amendments and new sections are proposed under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §391.032, which provides authority to establish rules to regulate the orderly and effective display of commercial signs on primary roads, Transportation Code, §391.0355, which provides authority for the commission to set fees for administrative penalties in association with violation of commercial sign regulations; Transportation Code, §391.065, which provides authority to establish rules to standardize forms and regulate the issuance of commercial sign licenses; and Transportation Code §391.068, which provides authority for the commission to prescribe permit requirements and set fees for commercial sign permits.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapters 391.