PROPOSED RULEMAKING
DEPARTMENT OF TRANSPORTATION
[67 PA. CODE CH. 43]
Temporary Registration Cards and Plates
[26 Pa.B. 3839] The Department of Transportation (Department), Bureau of Motor Vehicles, under the authority contained in 75 Pa.C.S. §§ 1310, 1331, 1374 and 6103, proposes to amend Chapter 43 (relating to temporary registration cards and plates) as set forth in Annex A. The statutory provisions, respectively, direct the Department to issue temporary registration cards; require the Department to provide registration plates; set forth requirements for issuing temporary vehicle registration plates; prescribe relevant mitigating events and monetary penalties; and authorize the Department to promulgate regulations to implement the provisions of the Vehicle Code.
Purpose of this Chapter
The purpose of Chapter 43 is to establish rules and procedures governing the issuance of temporary registration plates and cards by designated dealers, manufacturers, full agents and card agents, and to allow vehicle owners the use of their vehicles pending the issuance of permanent registration cards or plates. These regulations help to assure the proper disposition of registration titling, and sales tax fees associated with the sale or transfer of vehicles.
Purpose of These Amendments
The purpose of these amendments is to clarify those who are eligible for authorization as an issuing agent and that an application to become an issuing agent must be completely executed. These amendments also clarify the type of records that issuing agents are required to keep, the type of registration plates that issuing agents may issue and how they may issue them, the type of losses that are covered by a surety bond, and the manner in which claims upon the surety bond will be handled and prioritized. The alternative of obtaining a letter of credit in lieu of a surety bond is eliminated by these regulations, because no one has ever used this alternative due to its cost prohibitiveness.
These amendments also amend the schedules of sanctions appearing in § 43.11 (relating to sanctions for violations by issuing agents). These amendments provide for the consideration of relevant mitigating events prior to imposing a sanction for certain offenses. If an agent alters the date of purchase upon an application, however, that agent will not be entitled to exoneration or reduction of a monetary penalty. In addition, these amendments authorize the imposition of a monetary penalty instead of a suspension for certain offenses.
The initial impetus for the clarification and amendments was the decision rendered by Commonwealth Court in Department of Transportation, Bureau of Motor Vehicles v. Century III Chevrolet, Inc., 151 Pa. Cmwlth. Ct. 32, 617 A.2d 43 (1992). In that case, Commonwealth Court held that when the term ''may,'' is employed within the same section of the regulations by itself without modification in one subsection, yet with the modifying phrase ''in its discretion'' in another subsection, the term ''may'' means ''shall'' when standing alone, and means ''may'' when modified by the phrase ''in its discretion.'' The effect of this decision was to make the schedule of penalties found in § 43.11 mandatory and not discretionary.
The Century III decision induced members of the affected industry to contact the Department in an effort to amend the regulations. In addition to an exchange of letters and telephone calls, representatives of the Department met and discussed the regulations with representatives of the Pennsylvania Automotive Association (PAA) and the Pennsylvania Independent Automobile Dealers Association (PIADA) on July 18, August 31 and October 24, 1995, and on January 23, 1996. After extensive consultation with these representatives of the entities who will be affected by these regulations, the Department proposes to amend the schedule of penalties, in order to clarify when a sanction will be mandatory or discretionary. The sanctions prescribed for violations of Category I offenses shall be mandatory; the sanctions prescribed for violations of Category II offenses may be imposed within the discretion of the Department.
By clarifying when the imposition of sanctions for violations of Chapter 43 is mandatory or discretionary, the Department believes that the ambiguity of the current regulations will be eliminated. These proposed amendments will provide express written notice to issuing agents, dealers, manufacturers and other affected persons, that violation of this chapter will result in the imposition of a sanction for a Category I offense and may result in a sanction for a Category II offense.
After consultation with the representatives of the entities affected, the Department has described at § 43.11(h) the relevant mitigating events that the Department will consider for certain offenses. Relevant mitigating events that will result in exoneration are prescribed at § 43.11(h)(1); relevant mitigating events that will result in reduction of a monetary penalty are prescribed at § 43.11(h)(2). Monetary penalties are prescribed at § 43.11(a) for violations of § 43.11(a) Category II(5) (relating to untimely submission of documents, fees or taxes).
These regulations also will delete language relating to a letter of credit, which the Department inadvertently neglected to remove from § 43.9(h) of a final rulemaking published at 23 Pa.B. 3347 (July 10, 1993). When the notice of proposed rulemaking was published at 21 Pa.B. 1316 (March 30, 1991), § 43.9(f) included a proposed amendment to allow a full agent to submit an irrevocable letter of credit in lieu of the bond required by § 43.9(b), subject to Department verification and approval. Section 43.2 (relating to definitions) defines a full agent as ''a county treasurer or a person other than a manufacturer authorized by the Bureau to issue temporary registration cards and plates.'' The Department received comments from the Independent Regulatory Review Commission (IRRC) and the Pennsylvania Association of Notaries, who were concerned that full agents would not utilize this option because of the expense associated with an irrevocable letter of credit. Since many full agents do not issue a high volume of cards and plates, the irrevocable letter of credit would be a cost prohibitive alternative to the bond required by § 43.9(b).
The Department, realizing that the option of obtaining an irrevocable line of credit would occasion additional expense and would likely not be utilized by full agents because of this, eliminated the proposed § 43.9(f) language from the final rulemaking. Subsequent to the publication of the final rulemaking, the Department realized that § 43.9(h)(3), which had also been amended, still contained language referring to a letter of credit. These proposed amendments will delete this language to ensure that full agents are aware that an irrevocable letter of credit is not available as an option to satisfy the bonding requirement of § 43.9(b).
Significant Amendments
The following represent a summary of the significant amendments to these regulations:
Section 43.4(d) (relating to authorization to issue temporary registration plates) is amended to provide that an application to be an issuing agent may be denied if the applicant's business is operated, managed or otherwise controlled or influenced by a corporate officer or shareholder who is ineligible for authorization. The purpose of this amendment is to close a loophole in existing regulations. For example, an individual may be suspended or revoked as an issuing agent for various violations. The agent may form a corporation, which under the law is considered a separate person. Nevertheless, in reality, the same person who has been suspended by the Department for violations, is actually involved in running the corporation's business. The amendment to § 43.4(d) will prevent prior offenders from using the corporate veil to resume operations prior to serving their suspension for prior offenses.
Section 43.5(d)(ii)(3) (relating to issuance of temporary registration cards) is amended to require issuing agents who are also dealers to keep as part of their records the bill of sale and a copy of the document used for identification. By requiring agents to keep a copy of the document used for identification, the Department will be better able to verify whether an agent is complying with the insurance verification requirements of 75 Pa.C.S. § 1318 (relating to duties of agents). Requiring agents, who are also dealers, to keep copies of the bill of sale of an automobile assists the Department and the State Police in monitoring the accuracy of applications submitted by those issuing agents, who, because they are also dealers, may have a personal, pecuniary interest in the transaction for which they are forwarding the registration documents, taxes and fees to the Department.
Section 43.6 (relating to issuance of temporary registration plates) is amended to clarify that only the Bureau and not issuing agents may issue temporary registration plates for reconstructed and specially constructed vehicles. This amendment is needed because an official inspection mechanic must first inspect the vehicle for road-worthiness under Chapter 19 (relating to specially constructed vehicles, reconstructed vehicles and street rods). The public safety aspect of Chapter 19 would be undermined if issuing agents are permitted to issue temporary registration for a reconstructed or specially constructed vehicle before the vehicle's road-worthiness is verified by the official inspection mechanic.
Section 43.9(d) (relating to bond) is amended to clarify that the surety bond is only intended to cover losses that result from an issuing agent submitting a dishonored or uncollectible check, failing to remit to the Commonwealth a fee or tax resulting from the issuance of title or registration, or failing to remit a monetary penalty. The bond may not cover losses that are not mentioned in § 43.9(d). This amendment clarifies that the bond is not available for other claims, such as those pertaining to liability incurred by an agent for failing to verify proof of financial responsibility prior to issuing temporary registration.
Because the surety bond is only required to be in the amount of $20,000, it is not intended to serve as casualty insurance, in the event that an issuing agent failed to verify financial responsibility for a motorist, who was subsequently involved in a motor vehicle accident and did not have insurance. Thus, this amendment makes it clear that the surety bond is only intended to cover taxes, fees and monetary penalties.
Section 43.9(h) (relating to effective dates) is amended to delete the reference to prior effective dates for these regulations which have since expired. Because these regulations are now effective, there is no need to list the prior effective dates. This subsection is replaced with a provision authorizing the Bureau to make and settle claims upon the bond with the surety company on behalf of the Commonwealth and a person who has incurred a monetary loss. This amendment permits a claimant to demand that the Commonwealth assign its right to make claim on the claimant's behalf directly to the claimant. However, in this event the Commonwealth is released from any duty to the claimant towards obtaining satisfaction for that person. This amendment also specifies the priority in which claims will be paid. The order of priority for payment of claims is as follows: claims made by the Commonwealth; claims made by the Commonwealth for aggrieved persons; claims made by persons who obtained assignment from the Bureau.
The purpose of this amendment is as follows. In a situation where a dealer defaults in remitting taxes and fees, many consumers may be involved. In order to reduce litigation and legal fees for the innocent consumers, the Department has historically handled all the paperwork and negotiations with the surety company in order to make whole the innocent consumers. These amendments specifically sanction this practice. However, if a claimant insists on individually pursuing his claim, as is his right, these regulations make clear that he may do so. Of course, if a person does not wish to permit the Department to handle the matter, the amended regulations provide that the Department will be relieved of any responsibility to obtain satisfaction for that claimant.
In addition, a provision for priority of claims is added to make clear that the Commonwealth's claim for sales tax and fees has priority above all others, and that claims made by the Department, for consumers who paid taxes and fees to a dealer, that failed to remit them, take precedence over those persons who do not participate in the Department's program to obtain satisfaction for aggrieved persons. This amendment is necessary because it is in the best interest of the Department, the dealer, the surety company and the aggrieved consumers that litigation be minimized, by permitting the Department to process the claims. Rather than having to deal with possibly scores of individual claimants, the dealer and surety company may deal exclusively with the Department in settling the claims. The aggrieved persons are relieved of legal fees and incur far less inconvenience and loss of time, if the Department handles their claims upon the surety bond.
Section 43.9(h)(3) is amended by eliminating the option of submitting a letter of credit in lieu of the surety bond. This option was proposed in a notice of proposed rulemaking published at 21 Pa.B. 1316, however the Department was informed that it is costly and difficult for many full agents to obtain a letter of credit. The Department deleted the option from § 43.9(f) when the final rulemaking was published at 23 Pa.B. 3347, yet inadvertently neglected to delete the reference to § 43.9(h)(3). This proposed amendment will rectify the error and ensure that full agents realize that a letter of credit is not available as an alternative to a bond.
The schedule of sanctions set forth at § 43.11(a) (relating to sanctions for violations by issuing agents) is amended, to clarify when a sanction will be mandatory or discretionary. The sanctions prescribed for violations of Category I offenses shall be mandatory; the sanctions prescribed for violations of Category II offenses may be imposed within the discretion of the Department. By clarifying when the imposition of sanctions for violations of Chapter 43 is mandatory or discretionary, the Department believes that the ambiguity of the current regulations will be eliminated. These proposed amendments will provide express written notice to issuing agents, dealers, manufacturers and other affected persons, that violation of these chapters will result in the imposition of a sanction for a Category I offense and may result in a sanction for a Category II offense. Serious offenses are placed in Category I, which mandates sanctions. Less serious offenses are placed in Category II, which gives the Department discretion to sanction or not to sanction the agent. Although no new offenses are created, various offenses within the schedule of sanctions at § 43.11(a), have been transferred between the current Category I and Category II schedules, in order to properly classify the offense, within the revised mandatory Category I and discretionary Category II offenses, depending upon an offense's relative seriousness.
In addition to the provision for a monetary penalty of $50 to $100 for a second offense and $100 to $200 for a third offense, § 43.11(a) Category I(4) has been transferred to Category II and the sanction for a fourth or subsequent offense has been amended from a ''revocation'' to a ''3-month suspension up to revocation.'' The Department believes that the current sanction of revocation only for a fourth or subsequent offense is too harsh. Consequently, the sanction for a fourth offense is amended to a 3-month suspension up to revocation. This will permit the Department to exercise discretion based upon the circumstances leading to the violations.
Section 43.11(c) is amended to delete the phrase ''in its discretion'' in response to the Century III case, to clarify that the term ''may'' truly means ''may,'' when it appears within these regulations. This subsection is additionally amended to provide that when an agent, who is also a dealer, is sanctioned with a monetary penalty as a dealer for a violation under Chapter 53, and for which violation the agent may also be sanctioned with a monetary penalty under Chapter 43, only the monetary penalty prescribed at Chapter 53 may be imposed. The purpose of this amendment is to prevent the imposition of double monetary penalties upon an issuing agent who is also a dealer.
Section 43.11(h) is added to the regulations in order to prescribe relevant mitigating events for a violation of section 43.11(a) Category II(5) (relating to late submission of documents, fees and taxes). Because the General Assembly has mandated the Department to consider relevant mitigating events for dealers who commit this same type of violation as a dealer, the Department believes that agents should be similarly treated in order for the Department to be consistent and fair when sanctioning those who are subject to regulation by this Department.
Based upon the type of event, the Department deems it reasonable to establish two types of relevant mitigating events: those that are of such a superseding nature as to completely exonerate the agent; and those that are of a negligent nature, yet by which no consumer was harmed, and, further, the agent has subsequently remedied the problem. These latter events will result in reduction of the monetary penalty that otherwise could be imposed by the Department. Superseding events that will result in exoneration are enumerated at § 43.11(h)(1)(i)--(v), and include acts of God, whether the late submissions were caused by criminal or fraudulent action by an employe or authorized messenger of the Department of which the agent was not aware, or by the failure of a lienholder to promptly forward a title to an agent after satisfaction of a lien.
Relevant mitigating events that will result in reduction of a monetary penalty, but not exoneration, are enumerated at § 43.11(h)(2)(i) and (ii), and include whether subsequent to the notice of hearing issued by the Department, the Department's records reflect that the agent has remedied the event which caused the late submissions and that no additional late submissions have occurred; and whether the applications, fees and taxes were less than 40 days late and that no vehicle purchaser or consumer was harmed by the agent's failure to timely submit the applications, taxes and fees. If applications, fees and taxes are submitted more than 40 days late, it is nearly impossible for the Department to process the paperwork, and mail the vehicle purchaser his annual registration before this 60-day temporary registration expires. If an applicant's temporary registration expires, before he has received his annual registration, he is subject to prosecution under 75 Pa.C.S. § 1301 (relating to registration and certificate of title required) for not having his vehicle properly registered. Even if not cited, the stress created for this consumer by the agent's failure to timely deliver the application, taxes or fees, warrants this Department drawing the line at 40 days when determining whether to reduce the monetary penalty.
Section 43.11(i) is added to authorize suspension without a hearing when an agent refuses to allow an inspection of its records under § 43.7(d) (relating to records available for inspection). Because the Department's ability to review documents is the key means of verifying and enforcing compliance with the provisions of this chapter, an immediate and prompt suspension of an agent is most appropriate, if the agent refuses to permit inspection of his records.
The Department is amending § 43.12, use of temporary registration plate, by removing the substance of the existing § 43.12(d), regarding prosecution, to a newly established subsection (e) and by incorporating a new rule at subsection (d). This amendment will clarify when issuing agents may issue temporary metal registration plates and temporary cardboard registration plates for commercial motor vehicles. Commercial motor vehicles with a gross weight or registered gross weight in excess of 26,000 pounds are required by the International Registration Plan (IRP) to display an apportioned registration plate whenever the vehicle is from an IRP state and is operating in another IRP state. The Commonwealth adopted the IRP under the authority of section 6144 of the Vehicle Code (relating to Vehicle registration and licensing). See also 26 Pa.B. 634 (February 10, 1996). However, if the commercial motor vehicle is not operated outside of its home state and is not operated within an IRP state, it does not have to display an apportioned registration plate. Because temporary registration plates are not apportioned registration plates, § 43.12(d)(1) clarifies that issuing agents may issue these plates for commercial motor vehicles only if the vehicle weighs or is registered at 26,000 pounds or less, or if it is not operated outside of this Commonwealth or is only operated in a non-IRP state.
Section 43.12(d)(2) clarifies that a commercial vehicle may not be laden when displaying temporary cardboard registration plates. Under the definition of temporary registration plate at § 43.2 (relating to definitions), cardboard registration plates may only be used on vehicles that are being driven or moved to another state for the purpose of titling, registration, use or resale in that state. Under § 43.6(g) the maximum fee for this plate is $10. Because the purpose of the cardboard plate is merely to give the owner authority to drive the vehicle out of the Commonwealth, the normal fee based upon the weight of the vehicle as prescribed at 75 Pa.C.S. § 1916 (relating to passenger cars) is not charged. If the applicant has not requested a commercial registration plate, nor paid the appropriate fees for such a plate, but instead has obtained a cardboard registration plate, the applicant cannot use the cardboard registration plate on a laden commercial vehicle. Consequently, the Department has made this clear by adding § 43.12(d)(2).
Persons and Entities Affected
These proposed amendments affect all persons who will apply for the authority to issue, or who are currently authorized to issue, temporary registration cards and plates; those vehicle owners who request the issuance of a temporary card or plate; the State Police and local law enforcement agencies.
Fiscal Impact
These proposed amendments will not impose any costs on the Commonwealth, local municipalities or affected persons who comply with the regulations. Issuing agents, who fail to timely submit documents, taxes and fees to the Department, may be subject to significant fines. These proposed amendments will not occasion the preparation of any additional forms, reports or other paperwork.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of these proposed amendments on July 15, 1996, to IRRC and the Chairperson of the House Transportation Committee and the Senate Transportation Committee. In addition to submitting these proposed amendments, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the agency in compliance with Executive Order 1982-2, ''Improving Government Regulations.'' A copy of this material is available to the public upon request.
If IRRC has objections to any portion of these proposed amendments, it will notify the Department within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of these regulations, by the Department, the General Assembly and the Governor of objections raised.
Sunset Provisions
The Department is not establishing a sunset date for these proposed amendments, since these amendments are needed to administer provisions required under 75 Pa.C.S. (relating to Vehicle Code). The Department, however, will continue to monitor these regulations for their effectiveness.
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed amendments to Louis J. Curl III, Director, Bureau of Motor Vehicles, 104 Transportation and Safety Building, Harrisburg, PA 17120, within 30 days of publication of this notice in the Pennsylvania Bulletin.
Contact Person
For further information, the contact person is Linley Oberman, Manager, Customer Service Division, Bureau of Motor Vehicles, Room 104, Transportation and Safety Building, Harrisburg, PA 17122, (717) 783-2780.
BRADLEY L. MALLORY,
SecretaryFiscal Note: 18-337. No fiscal impact; (8) recommends adoption.
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