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(a)Administrative Penalties. (1)The compliance review may result in the initiation of an enforcement action based upon the number and degree of seriousness of the violations discovered during the review as well as those factors listed in Title 49, Code of Federal Regulations, Part 385.7. As a result of the enforcement action, the department may impose an administrative penalty against a motor carrier who violates a provision of the Texas Transportation Code, Title 7, Subtitle B, Chapter 522 (relating to Commercial Driver's License), Subtitle C, Chapters 541-600 (relating to the Rules of the Road), and Subtitle F, Chapter 644 (relating to Commercial Motor Vehicles), including any amendments not codified in the Texas Transportation Code. Each of these provisions relates to the safe operation of a commercial motor vehicle under Texas Transportation Code, §644.153(b). (2)The department shall have discretion in determining the appropriate amount of the administrative penalty assessed for each violation, and adopts the Federal Uniform Fine Assessment Program as a method of determining penalty assessment. A penalty under this section may not exceed the maximum penalty provided for a violation of a similar federal safety regulation. (3)The amount of the administrative penalty shall be determined by taking into account the following factors: (A)For violations other than those under the hazardous material regulations: (i)nature of the violation; (ii)circumstances of the violation; (iii)extent of the violation; (iv)gravity of the violation; (v)degree of culpability; (vi)history of prior offenses; (vii)ability to pay; (viii)the amount necessary to deter future violations; (ix)effect on ability to continue to do business; and (x)such other matters as justice and public safety may require. (B)For hazardous material violations, the factors detailed in paragraph (3)(A) of this section, are considered in addition to the following factors: (i)any good faith effort to comply with the applicable requirements; and (ii)any economic benefit resulting from the violation. (b)Payment, Collection and Settlement of Administrative Penalty. (1)Payment. A person who is subject to an administrative penalty imposed by the department as authorized by Texas Transportation Code §644.153(c) is required to pay the administrative penalty. The administrative penalty may be paid through one of the following options: (A)Full Payment. Full payment of the administrative penalty in the form of a check, cashier's check, or money order made payable to the Department of Public Safety shall be submitted to the Texas Department of Public Safety, Attn: Motor Carrier Bureau, MSC 0522, 6200 Guadalupe, Building P, Austin, Texas 78752-4019. (B)Installment Payments. (i)A person(s), firm, or business may, upon approval of the director or the director's designee, be allowed to make installment payments of an administrative penalty, costs, fees, expenses, and reasonable and necessary attorney's fees incurred by the state upon submission of adequate proof of inability to pay the full amount of the claim. An application shall be submitted on a form approved by the department. (ii)The person(s), firm, or business requesting the installment agreement must submit adequate documentation to support the request and make all relevant financial records of the person(s), firm, or business available to the department for inspection and verification. (iii)In the event of a default of the installment agreement by the person(s), firm, or business, then the remaining balance of the installment agreement will be due immediately. (iv)Upon default under an installment agreement, the person(s), firm, or business is no longer eligible for installment payments. (2)Non-Payment of Administrative Penalty. A person who fails to pay, or becomes delinquent in the payment of the administrative penalty imposed by the department as authorized by Texas Transportation Code, §644.153(c) shall not operate or direct the operation of a commercial motor vehicle on the highways of this state until such time as the administrative penalty has been remitted to the department. The department will make every effort to collect an administrative penalty once an enforcement action has been deemed as a Final Departmental Decision through the following options: (A)Issuance of an Impoundment Order. Pursuant to Texas Transportation Code, §644.153(o)-(s), the department will issue an impoundment order for the impoundment of any commercial motor vehicle that is operated or directed by the person(s), firm, or business that fails to pay an administrative penalty issued under this subchapter. (B)Prior to issuing the impoundment order, the department will send a Notice of Claim to the person(s), firm, or business in violation of this subchapter by certified mail, return receipt requested, or by personal service requiring a response within 20 business days. The notice will contain the following language in bold, large face type: "FAILURE TO PAY THIS CLAIM OR RESPOND, AS SPECIFIED IN THE NOTICE OF CLAIM, WITHIN 20 BUSINESS DAYS WILL RESULT IN THIS NOTICE OF CLAIM BEING DEEMED A 'FINAL DEPARTMENT DECISION.' A PERSON WHO IS SUBJECT TO AN ADMINISTRATIVE PENALTY IMPOSED BY THE DEPARTMENT UNDER TEXAS TRANSPORTATION CODE, §644.153 IS REQUIRED TO PAY THE ADMINISTRATIVE PENALTIES OR RESPOND TO THE DEPARTMENT'S NOTICE OF CLAIM. A PERSON WHO FAILS TO PAY, OR BECOMES DELINQUENT IN THE PAYMENT OF THE ADMINISTRATIVE PENALTIES IMPOSED BY THE DEPARTMENT UNDER TEXAS TRANSPORTATION CODE, §644.153 SHALL NOT OPERATE OR DIRECT THE OPERATION OF A COMMERCIAL MOTOR VEHICLE ON THE HIGHWAYS OF THIS STATE UNTIL SUCH TIME AS THE ADMINISTRATIVE PENALTIES HAVE BEEN REMITTED TO THE DEPARTMENT." (C)The department shall issue an Impoundment Order if the person(s), firm, or business fails to respond as specified to the Notice of Claim within 20 business days. The Impoundment Order will contain the following information: (i)Motor carrier's name, address, city, zip code and telephone number; (ii)The motor carrier's Texas Department of Transportation, United States Department of Transportation, or Motor Carrier number, if any; (iii)The amount of delinquent penalty assessment; (iv)The date the Impoundment Order was issued; (v)A contact number for the Motor Carrier Bureau; (vi)Notice that impoundment will be lifted upon receipt of full payment of the administrative penalty at the Motor Carrier Bureau or the designated Commercial Vehicle Enforcement employee as described in paragraph (5)(C)(i) or (ii) of this subsection; and, (vii)In bold, conspicuous letters, notice that the carrier is responsible for all costs of storage of the vehicle and its cargo, and towing. (3)Prior to impounding any vehicle, the trooper shall verify the Impoundment Order is still valid. Verification can only be made by the Manager, Assistant Manager, Motor Carrier Bureau Attorney, or the Motor Carrier Compliance Audit Section Supervisor of the Motor Carrier Bureau. If a trooper is unable to verify the Impoundment Order is in force, then the vehicle shall not be impounded. (4)Once a vehicle is impounded, the trooper impounding the vehicle shall immediately ensure the motor carrier is notified of impoundment of the vehicle. The trooper will inform the motor carrier of the name, location, and telephone number of the vehicle storage facility where the vehicle is impounded, notice the vehicle will not be released until the administrative penalty has been paid, and a contact number for the Motor Carrier Bureau. (5)Release of Impounded Vehicles. (A)To cancel the Impoundment Order and to release a vehicle from impoundment, the motor carrier shall pay the administrative penalty in full. (B)The payment of the administrative penalty must be for the full amount. The payment must be made by cashier's check or money order payable to the Texas Department of Public Safety. (C)The payment can be made in one of two ways only: (i)by sending it to the following address as indicated: Texas Department of Public Safety, Motor Carrier Bureau, MSC 0522, 6200 Guadalupe, Bldg. P, Austin, Texas 78752-4019, Attn: Accounting Clerk, Impoundment Notice; or (ii)directly to the trooper at the time of the actual impoundment or to any Commercial Vehicle Enforcement employee at any department regional, district or sub-district office. (D)The impounded vehicle will be released and the impoundment order will be cancelled only upon receipt of payment as specified under paragraph (5)(C)(i) or (ii) of this subsection or if the department refers the case to the attorney general for collection of the amount of the penalty.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed
with the Office of the Secretary of State on November 3, 2003
TRD-200307522 Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: December 14, 2003
For further information, please call: (512) 424-2135
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