| (iv) When a request for a change to a safety rating,
based on corrective actions, is filed before a "conditional" or "unsatisfactory"
safety rating has been final for six (6) months or less, the timeline
in subsection (b)(3)(G)(iii) of this section is applicable for conducting
a follow-up compliance review. All other requests for a change to
a safety rating will be scheduled on a priority basis; however, the
abbreviated timeline for completion as specified in subsection (b)(3)(G)(iii)
is no longer applicable.
(v) The filing of a request for a change to a proposed
or final safety rating under this section does not stay the 45 calendar
day period specified in this subsection for motor carriers transporting
passengers or hazardous materials. If the motor carrier has submitted
evidence that corrective actions have been taken pursuant to the Federal
Motor Carrier Safety Regulations and state regulations and the department
cannot make a final determination within the 45 calendar day period,
the period before the proposed safety rating becomes final may be
extended for up to 30 calendar days at the discretion of the department.
(vi) The department may allow a motor carrier with
a proposed rating of "unsatisfactory" (except those transporting passengers
in commercial motor vehicles or placardable quantities of hazardous
materials) to continue to operate in intrastate commerce for up to
60 calendar days beyond the 60 calendar days specified in the proposed
rating, if the department determines that the motor carrier is making
a good faith effort to improve its safety status. This additional
period would begin on the 61st day after the date of the notice of
the proposed "unsatisfactory" rating.
(vii) If the department determines that the motor carrier
has taken the corrective actions required and that its operations
currently meet the safety standard and factors specified in Title
49, Code of Federal Regulations, §385.5 and §385.7, and
equivalent state regulations contained in Texas Transportation Code,
Chapter 522 and Chapter 644, and 37 TAC Chapter 4, the department
will notify the motor carrier in writing of its upgraded safety rating.
An upgraded safety rating is final upon notification.
(viii) If the department determines that the motor
carrier has not taken all the corrective actions required, or that
its operations still fail to meet the safety standard and factors
specified in Title 49, Code of Federal Regulations, §385.5 and §385.7,
and equivalent state regulations contained in Texas Transportation
Code, Chapter 522 and Chapter 644, and 37 TAC Chapter 4, the department
will notify the motor carrier in writing. Any extension of the time
period before an unsatisfactory safety rating becomes effective under
paragraph (3)(G)(iv) or (v) of this subsection will expire upon receipt
of this notice.
(ix) Any motor carrier whose request for change to
a safety rating is denied in accordance with this subsection may request
a departmental review under the procedures of paragraph (3)(H) of
this subsection. The motor carrier must make the request within 90
calendar days of the denial of the request for a rating change. If
the proposed rating has become final, it shall remain in effect during
the period of any departmental review.
(H) A motor carrier may request the department to conduct
a departmental review if it believes the department has committed
an error in assigning its proposed safety rating in accordance with
Title 49, Code of Federal Regulations, §385.15(c), Texas Transportation
Code, Chapter 644, or 37 TAC Chapter 4 or its final safety rating
in accordance with Title 49, Code of Federal Regulations, §385.11(b),
Texas Transportation Code, Chapter 644, or 37 TAC Chapter 4.
(i) The motor carrier's request must explain the error
it believes the department committed in issuing the safety rating.
The motor carrier must include a list of all factual and procedural
issues in dispute, and any information or documents that support its
argument.
(ii) If a motor carrier has received a notice of a
proposed conditional or unsatisfactory safety rating, it should submit
its request within 15 business days from the date of the notice. This
time frame will allow the department to issue a written decision before
the safety rating becomes final and any prohibitions outlined in paragraph
(3)(C) of this subsection take effect. Failure to request within this
15 business day period may prevent the department from issuing a final
decision before such prohibitions take effect.
(iii) The motor carrier must make a request for a departmental
review within 90 calendar days of either the proposed or final safety
rating issued in accordance with this subsection, or within 90 calendar
days after denial of a request for a change in a safety rating in
accordance with paragraph (3)(G) of this subsection.
(iv) The department may ask the motor carrier to submit
additional data and attend a conference in Austin, Texas to discuss
the safety rating. If the motor carrier does not provide the information
requested or does not attend the conference, the department may dismiss
its request for review. The review will be conducted by the director's
designee(s).
(v) The department will notify the motor carrier in
writing of its decision following the departmental review. The department
will complete the review within 30 calendar days after receiving a
request from a hazardous materials or passenger motor carrier that
has received a proposed or final "unsatisfactory" or "conditional"
safety rating; or within 45 calendar days after receiving a request
from any other motor carrier that has received a proposed or final
"unsatisfactory" or "conditional" safety rating.
(I) A final safety rating constitutes a final agency
decision. Any review of such decision is subject to Texas Government
Code, Chapter 2001. Judicial review is subject to the substantial
evidence rule under Texas Government Code, §2001.174.
(c) Safety Audits.
(1) The department may perform safety audits on interstate
motor carriers domiciled in Texas that are part of the New Entrant
Safety Assurance Program under Title 49, Code of Federal Regulations,
Part 385, Subpart D. The department will comply with all requirements
of Title 49, Code of Federal Regulations, Part 385, Subpart D when
carrying out safety audits.
(2) Safety audits will be conducted by an individual
who is certified to conduct new entrant safety audits. Safety audits
may be conducted at the carrier's premises or at an off-site location
chosen by the department.
(3) Motor carriers that are part of the New Entrant
Safety Assurance Program will make records and documents required
for a safety audit available for inspection upon the request of an
individual certified to perform safety audits.
(A) The department will report to the Federal Motor
Carrier Safety Administration any motor carriers who:
(i) fail to respond to attempts by the department to
make contact to initiate a safety audit,
(ii) refuse to meet with the department to conduct
the safety audit, and/or
(iii) refuse to provide records and documents required
for the safety audit.
(B) Motor carriers who do not complete a required safety
audit may have their interstate operating authority revoked by the
Federal Motor Carrier Safety Administration.
(4) Safety audits will review a motor carrier's safety
management systems and practices to determine compliance with federal
safety regulations. The safety audit will also be used to educate
the motor carrier on safety compliance. The reviewer's findings will
be reported to the Federal Motor Carrier Safety Administration. Safety
audits will have a pass or fail determination and will not assign
a safety rating to a motor carrier.
(5) In the course of a safety audit, if it is discovered
that the motor carrier has committed any of the actions listed in
Title 49, Code of Federal Regulation, Part 385.308(a), the department
may schedule a compliance review to carry out a more thorough examination
of the motor carrier's safety management.
(d) Imminent Hazard.
(1) Regardless of whether an unsatisfactory safety
rating has become final under subsection (b)(3)(C) of this section,
if the manager of the Motor Carrier Bureau or their designee determines
that a motor carrier's operations constitute an imminent hazard, the
manager or their designee shall issue an order to cease all or part
of the motor carrier's commercial motor vehicle operations.
(2) In making any such order, no restrictions shall
be imposed on any employee or employer beyond that required to abate
the hazard.
(3) Opportunity for review of any such order shall
be in the manner described in §4.18 of this title (relating to
Intrastate Operating Authority Out-of-Service Review).
(4) For purposes of all enforcement the department
is authorized to take, any operations in violation of an imminent
hazard determination will be treated as operating with a final unsatisfactory
rating issued under subsection (b)(3)(D)(iii) of this section.
(e) Release of Safety Rating Information.
(1) The safety rating assigned to a motor carrier will
be made available to the public upon request.
(2) Requests should be addressed to the Texas Department
of Public Safety, Motor Carrier Bureau, P.O. Box 4087, Austin, Texas
78773-0521. All requests for disclosure of safety rating must be made
in writing and will be processed under the Texas Public Information
Act.
|
| Source Note: The provisions of this §4.15 adopted to be effective March 9, 2004, 29 TexReg 2376; amended to be effective January 4, 2005, 29 TexReg 12235; amended to be effective May 22, 2005, 30 TexReg 3031; amended to be effective May 30, 2006, 31 TexReg 4442; amended to be effective August 16, 2007, 32 TexReg 5034; amended to be effective June 11, 2008, 33 TexReg 4527; amended to be effective March 17, 2019, 44 TexReg 1359; amended to be effective April 10, 2023, 48 TexReg 1855 |
