| (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 compliance reviews 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.
Safety audits will be used to assess the safety management of interstate
motor carriers that are part of the New Entrant Safety Assurance Program
under Title 49, Code of Federal Regulation, Part 385, Subpart D. Definitions
specific to the compliance review and safety audit programs shall
have the following meanings unless the context shall clearly indicate
otherwise.
(1) Compliance review--An examination of motor carrier
operations to determine whether a motor carrier meets the safety fitness
standard.
(2) Culpability--An evaluation of the blame worthiness
of the violator's conduct or actions.
(3) 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.
(4) Safety audit--An examination of a motor carrier's
operations to provide educational and technical assistance on safety
and the operational requirements of the Federal Motor Carrier Safety
Regulations and applicable Hazardous Materials Regulations and to
gather critical safety data needed to assess the carrier's safety
performance and basic safety management controls. Safety audits do
not result in safety ratings.
(5) 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.
(6) 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.
(7) 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.
(8) For the purposes of safety ratings, Final Departmental
Decision is defined as:
(A) the letter notifying the carrier of a satisfactory
safety rating, issued under subsection (b)(3)(D) of this section;
(B) the letter notifying the motor carrier of a conditional
safety rating on the expiration of the time period in subsection (b)(3)(D)(ii)
of this section, unless this changed earlier as a result of the department
granting a request to change the safety rating or a departmental review;
(C) the letter notifying the motor carrier of a final
unsatisfactory safety rating issued under subsection (b)(3)(D)(iii)
of this section; or
(D) 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.
(b) Compliance Reviews.
(1) 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.
(iv) Refusal to permit an inspection under Texas Transportation
Code, §644.104 may be treated as an imminent hazard under subsection
(d) of this section. The department may issue an order to cease the
motor carrier's commercial vehicle operations under subsection (d),
which will remain in effect until an inspection is permitted.
(2) 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).
(3) 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) - (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 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 Cont'd... |
