| (a) 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
shall have the following meanings, unless the context shall clearly
indicate otherwise.
(A) Compliance review--An on-site examination of motor
carrier operations to determine whether a motor carrier meets the
safety fitness standard.
(B) Culpability--An evaluation of the blame worthiness
of the violator's conduct or actions.
(C) Imminent hazard--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--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, §385.5 and the state equivalents contained in Texas
Transportation Code, Chapter 522 and Chapter 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--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, §385.5(a) through
(k) and the state equivalents contained in Texas Transportation Code,
Chapter 522 and Chapter 644, and 37 TAC Chapter 4.
(F) Unsatisfactory safety rating--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,
Chapter 522 and Chapter 644, and 37 TAC Chapter 4.
(G) For the purposes of safety ratings, Final Departmental
Decision is defined as:
(i) the letter notifying the carrier of a satisfactory
safety rating, issued under paragraph (4)(D) of this subsection;
(ii) the letter notifying the motor carrier of a conditional
safety rating on the expiration of the time period in paragraph (4)(D)(ii)
of this subsection, unless this changed earlier as a result of the
department granting a request to change the safety rating or a departmental
review;
(iii) the letter notifying the motor carrier of a final
unsatisfactory safety rating issued under paragraph (4)(D)(iii) of
this subsection; or
(iv) the letter notifying the motor carrier of a decision
on a safety rating as a result of a request for a change of the safety
rating or a departmental review.
(2) Inspection of Premises.
(A) 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) 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) A compliance review will be conducted based upon:
(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, §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 a
change to a safety rating determination; or
(F) a hazardous material incident as described in §4.1(b)(4)
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, §385.7. The safety ratings detailed in subparagraph
(B)(i) - (B)(iii) of this paragraph will be assigned:
(i) satisfactory safety rating;
(ii) conditional safety rating; or
(iii) unsatisfactory safety rating.
(C) The provisions of Title 49, Code of Federal Regulations, §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 46th calendar day after notice
of the proposed unsatisfactory safety rating; all other intrastate
motor carriers are prohibited from operation on the 61st 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 within 30 business
days of the close out date of the compliance review.
(i) Notice of a satisfactory safety rating will be
sent by regular U.S. Mail, or by personal delivery, and is final upon
receipt or mailing.
(ii) Notice of a proposed conditional safety rating
shall be sent by certified mail, registered mail, personal delivery,
or another manner of delivery that records the receipt of the notice
by the person responsible, and will include a list of those items
for which immediate corrective action must be taken. Unless changed
by the department following a request for a change of safety rating
or a department review, the conditional safety rating will become
final without further notice on the 46th calendar day after notice
of the proposed conditional safety rating for motor carriers transporting
more than 15 passengers or hazardous materials requiring placarding
under Part 172, Subpart F, of Title 49, Code of Federal Regulations,
and on the 61st calendar day after notice of the proposed conditional
rating for all other motor carriers. If the motor carrier requests
a change of safety rating or a departmental review more than 15 days
after the notice of proposed conditional safety rating, the conditional
safety rating may become final before the department can complete
its review.
(iii) Notice of a proposed unsatisfactory safety rating
shall be sent by certified mail, registered mail, personal delivery,
or another manner of delivery to the motor carrier's last known location,
address, electronic mail address, or facsimile number and will include
a list of those items for which immediate corrective action must be
taken. Within 5 business days of the expiration of the time periods
set out in paragraph (4)(C) of this subsection, the department will
provide written notification of the final unsatisfactory safety rating
and an order to cease all intrastate transportation, as provided in
Title 49, Code of Federal Regulations, §385.13, by certified
mail, registered mail, personal delivery, or another manner of delivery
to the motor carrier's last known location, address, electronic mail
address, or facsimile number. Electronic mail may be used for safety
rating correspondence. If the motor carrier requests a change of safety
rating or a departmental review more than 15 days after the notice
of proposed unsatisfactory safety rating, the unsatisfactory safety
rating may become final before the department can complete its review.
(iv) A final unsatisfactory safety rating and order
to cease all intrastate transportation, described in clause (iii)
of this subparagraph, will become effective on the date specified
in the notice of proposed safety rating unless extended by the department,
in writing, under subparagraph (G)(v) or (vi) of this paragraph. The
department will make and document reasonable efforts to provide a
copy of the written final unsatisfactory safety rating and order to
cease intrastate transportation to the carrier. However, if the notice
of proposed safety rating was received by the motor carrier and adequately
describes the effective date and consequences of failure to improve
the motor carrier's safety rating, failure of the department to serve
the final unsatisfactory safety rating and order to cease intrastate
transportation will not delay its effective date.
(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, §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.
(G) A motor carrier that has taken action to correct
the deficiencies that resulted in a proposed or final rating of "conditional"
or "unsatisfactory" may request a rating change at any time.
(i) The motor carrier must base its request upon evidence
that it has taken corrective actions and that its operations currently
meet the safety standards 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 request must include a written
description of corrective actions taken, and other documentation the
carrier wishes the department to consider.
(ii) The department will make a final determination
on the request for change based upon the documentation the motor carrier
submits, a follow-up compliance review and any additional relevant
information. The review will be conducted by the director's designee(s);
the follow-up compliance review will be conducted by a field compliance
review investigator.
(iii) The department will perform reviews of requests
made by motor carriers with a proposed "unsatisfactory" or "conditional"
safety rating in the following time periods after receipt of the motor
carrier's request: within 30 calendar days for motor carriers transporting
passengers in commercial motor vehicles or placardable quantities
of hazardous materials; or within 45 calendar days for all other motor
carriers.
(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 6 months or less, the timeline in
paragraph (a)(4)(G)(iii) of this subsection 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 paragraph (a)(4)(G)(iii)
is no longer applicable.
Cont'd... |
