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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. (H)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)(ii) of this section; (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 section, 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; 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)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 a change to a safety rating determination; or (F)a hazardous material incident as described in §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 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 mailing notice within 30 business days of the compliance review. (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 61st 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 76th calendar day after notice of the proposed conditional rating for all other motor carriers. If the carrier requests a change of safety rating or a departmental review more than 15 days after the notice, the conditional safety rating may become final before the department can complete its review. (iii)Notice of an unsatisfactory 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. Within 5 business days of the expiration of the time periods set out in paragraph (4)(C) of this section, 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, Part 385.13, by certified mail, registered mail, personal delivery, or another manner of delivery that records the receipt of the notice by the person responsible. If the motor carrier requests a change of safety rating or a departmental review more than 15 days after the notice, the unsatisfactory safety rating may become final before the department can complete its review. (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. (G)Change to Safety Rating based on Corrective Actions. 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 Parts 385.5 and 385.7, and equivalent state regulations contained in Texas Transportation Code Chapters 522 and 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 streamlined compliance review and any additional relevant information. The review will be conducted by the director's designee(s); the streamlined 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 or final "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)The filing of a request for a change to a proposed or final safety rating under this section does not stay the 60 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 60 calendar day period, the period before the proposed safety rating becomes final may be extended for up to 10 calendar days at the discretion of the department. (v)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 75 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 76th day after the date of the notice of the proposed "unsatisfactory" rating. (vi)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 Parts 385.5 and 385.7, and equivalent state regulations contained in Texas Transportation Code Chapters 522 and 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. (vii)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 Parts 385.5 and 385.7, and equivalent state regulations contained in Texas Transportation Code Chapters 522 and 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 (4)(G)(iv) or (v) of this section will expire upon receipt of this notice. (viii)Any motor carrier whose request for change is denied in accordance with this subsection may request a departmental review under the procedures of paragraph (4)(H) of this section. 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)Departmental Review of Safety Rating. 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, Part 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, Part 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 (4)(C) of this section 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 an 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 (4)(G) of this section. (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. (vi)The decision constitutes a final agency decision. Any review of such decision is subject to Texas Government Code Chapter 2001. (I)The safety rating assigned to a motor carrier will be made available to the public upon request. (J)Requests should be addressed to the Texas Department of Public Safety, Motor Carrier Bureau, 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.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the
Secretary of State on December 15, 2004
TRD-200407346 Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Effective date: January 4, 2005
Proposal publication date: November 5, 2004
For further information, please call: (512) 424-2135
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