| (a) Safety Audit Program. The rules in this subsection, as authorized by Texas Transportation Code, §644.155, establish procedures to determine the safety fitness of motor carriers, assign safety ratings, take remedial actions when necessary, assess administrative penalties when required, and prohibit motor carriers receiving a safety rating of "unsatisfactory" from operating a commercial motor vehicle. The department will use the Compliance Review Audit to determine the safety fitness of motor carriers and to assign safety ratings. The safety fitness determination will be assessed on intrastate motor carriers and the intrastate operations of interstate motor carriers based in Texas. (1) Definitions specific to the Safety Audit Program are as follows: (A) Compliance Review means an on-site examination of motor carrier operations to determine whether a motor carrier meets the safety fitness standard. (B) Culpability means an evaluation of the blame worthiness of the violator's conduct or actions. (C) Imminent Hazard means any condition of vehicle, employees, or commercial vehicle operations which is likely to result in serious injury or death if not discontinued immediately. (D) Satisfactory Safety Rating means that a motor carrier has in place and functioning adequate safety management controls to meet the safety fitness standard prescribed in Title 49, Code of Federal Regulation, Part 385.5 and the state equivalents contained in Texas Transportation Code Chapters 522 and 644, and 37 TAC, Chapter 4. Safety management controls are adequate if they are appropriate for the size and type of operation of the particular motor carrier. (E) Conditional Safety Rating means a motor carrier does not have adequate safety management controls in place to ensure compliance with the safety fitness standard that could result in the occurrences listed in Title 49, Code of Federal Regulations, Part 385.5(a) through (k) and the state equivalents contained in Texas Transportation Code Chapters 522 and 644, and 37 TAC, Chapter 4. (F) Unsatisfactory Safety Rating means a motor carrier does not have adequate safety management controls in place to ensure compliance with the safety fitness standard which has resulted in occurrences listed in Title 49, Code of Federal Regulations, Part 385.5(a) through (k) and the state equivalents contained in Texas Transportation Code Chapters 522 and 644, and 37 TAC, Chapter 4. (G) For the purposes of collection of the administrative penalty, Final Departmental Decision is defined as: (i) the most recent claim letter issued to a motor carrier who fails to pay or becomes delinquent in the payment of an administrative penalty as outlined in §4.16 of this title (relating to Administrative Penalties, Payment, Collection and Settlement of Penalties) (ii) the most recent claim letter issued to a motor carrier who fails to request an informal hearing or an administrative hearing within 20 business days of receipt of the Notice of Claim; or (iii) a Final Order issued from an administrative hearing as outlined in this subchapter. (2) Inspection of Premises. (A) Authority to Inspect. An officer or a non-commissioned employee of the department who has been certified by the director may enter a motor carrier's premises to inspect lands, buildings, and equipment and copy or verify the correctness of any records, reports or other documents required to be kept or made pursuant to the regulations adopted by the director in accordance with Texas Transportation Code, §644.155. (B) Entry of Premises. The officer or employee of the department may conduct the inspection: (i) at a reasonable time; (ii) on stating the purpose of the inspection; and (iii) by presenting to the motor carrier; (I) appropriate credentials; and (II) a written statement from the department to the motor carrier indicating the officer's or employee's authority to inspect. (C) Civil and Criminal Penalties for Refusal to Allow Inspection. (i) A person who does not permit an inspection authorized under Texas Transportation Code, §644.104, is liable to the state for a civil penalty not to exceed $1,000. The director may request that the attorney general sue to collect the penalty in the county in which the violation is alleged to have occurred or in Travis County. (ii) The civil penalty is in addition to the criminal penalty provided by Texas Transportation Code, §644.151. (iii) Each day a person refuses to permit an inspection constitutes a separate violation for purposes of imposing a penalty. (3) Compliance Review Audits. A Compliance Review will be conducted based upon the following criteria: (A) unsatisfactory safety assessment factor evaluations; (B) written complaints concerning unsafe operation of commercial motor vehicles which are substantiated by documentation. Complaints for the purpose of this criterion include involvement in a fatality accident or the receipt of a 24-hour out-of-service notification based on violation(s) of Title 49, Code of Federal Regulations, Parts 392.4 or 392.5 or Texas Transportation Code, §522.101; (C) follow-up investigations of motor carriers that have been the subject of an enforcement action, an administrative penalty, or the assessment of an Unsatisfactory Safety Rating from the immediately previous Compliance Review; (D) requests from the legislature and state or federal agencies; (E) request for a safety rating determination; or (F) a hazardous material incident as described in section 4.1(b)(5) of this title (relating to Transportation of Hazardous Materials). (4) Safety Fitness Rating. (A) A safety fitness rating is based on the degree of compliance with the safety fitness standard for motor carriers. (B) A safety rating will be determined following a compliance review using the factors prescribed in Title 49, Code of Federal Regulations, Part 385.7. The following safety ratings will be assigned: (i) Satisfactory Safety Rating; (ii) Conditional Safety Rating; (iii) Unsatisfactory Safety Rating. (C) The provisions of Title 49, Code of Federal Regulations, Part 385.13 relating to "unsatisfactory rated motor carriers; prohibition on transportation; ineligibility for Federal contracts" is hereby adopted by the department and is applicable to intrastate motor carriers except that intrastate motor carriers transporting more than 15 passengers or hazardous materials are prohibited from operation on the 61st calendar day after notice of the proposed unsatisfactory safety rating; all other intrastate motor carriers are prohibited from operation on the 76th calendar day after notice of the proposed unsatisfactory safety rating. (D) The department will provide written notification to the motor carrier of the assigned safety rating by mailing an official notice of proposed safety rating certified, return receipt requested, U.S. mail within 30 business days of the close out date of the compliance review. A satisfactory safety rating is final upon mailing notice within 30 business days of the compliance review. Within 5 business days of the expiration of the time periods set out in subsection (a)(4)(C) of this section, the department will provide written notification of the final conditional or unsatisfactory safety rating by mailing an official notice of final safety rating via certified, return receipt requested, U.S. mail. (i) Notification of a "conditional" or "unsatisfactory" rating will include a list of those items for which immediate corrective action must be taken. (ii) A notification of an "unsatisfactory" safety rating will also include a notice that the motor carrier will be subject to the provisions of Title 49, Code of Federal Regulations, Part 385.13 which prohibit motor carriers rated "unsatisfactory" from operating a commercial motor vehicle to transport: (I) hazardous materials requiring placarding under Part 172, Subpart F, of Title 49, Code of Federal Regulations; or (II) more than 15 passengers, including the driver. (E) In addition to any criminal penalties provided by statute, a motor carrier assessed an unsatisfactory safety rating who continues to operate in violation of the notifications to cease operations under Title 49, Code of Federal Regulations, Part 385.13 will be subject to a civil suit filed by the attorney general from a request from the director of the Texas Department of Public Safety. Each day of operation constitutes a separate violation. (F) A request for a change in or a departmental review of a safety rating must be submitted in writing to: Texas Department of Public Safety, Manager-Motor Carrier Bureau, P.O. Box 4087, Austin, Texas 78773-0521. Such request(s) must meet the requirements provided for in this subsection. Cont'd... |
