(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 [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 [
Safety Audit Program] shall have the following meanings,
unless the context shall clearly indicate otherwise. [are
as follows:]
(A)Compliance review--An [Review means
an] on-site examination of motor carrier operations to determine
whether a motor carrier meets the safety fitness standard.
(B)Culpability--An [means an]
evaluation of the blame worthiness of the violator's conduct or actions.
(C)Imminent hazard--Any [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--A [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, §385.5 [
Part 385.5] and the state equivalents contained in Texas Transportation
Code, Chapter [Chapters] 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 [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, §385.5(a) through (k) [
Part 385.5(a) through (k)] and the state equivalents contained
in Texas Transportation Code, Chapter [Chapters]
522 and Chapter 644, and 37 TAC[,] Chapter 4.
(F)Unsatisfactory safety rating--A [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, Chapter [
Chapters] 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)[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 [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, §392.4
or §392.5 [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 [
Unsatisfactory Safety Rating] from the immediately previous compliance
review [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 [Part 385.7].
The [following] safety ratings detailed in subparagraph
(B)(i) - (B)(iii) of this paragraph will be assigned:
(i)satisfactory safety rating [Satisfactory
Safety Rating];
(ii)conditional safety rating [Conditional
Safety Rating]; or
(iii)unsatisfactory safety rating [Unsatisfactory
Safety Rating].
(C)The provisions of Title 49, Code of Federal Regulations,
§385.13 [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 46th [61st]
calendar day after notice of the proposed unsatisfactory safety rating;
all other intrastate motor carriers are prohibited from operation
on the 61st [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
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 [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 61st [76th]
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 [Part
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
[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, §385.5 and §385.7 [Parts
385.5 and 385.7], and equivalent state regulations contained
in Texas Transportation Code, Chapter [Chapters]
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)
[of this subsection] 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 [
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 45 [60] 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 [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 61st [
76th] 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 [
Parts 385.5 and 385.7], and equivalent state regulations contained
in Texas Transportation Code, Chapter [Chapters]
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 [Parts 385.5 and 385.7], and equivalent
state regulations contained in Texas Transportation Code, Chapter [
Chapters] 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 (4)(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 (4)(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.
Cont'd...
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