(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 reviews [
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. 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)Definitions specific to the safety
audit program shall have the following meanings, unless the context
shall clearly indicate otherwise.]
(1)[(A)] Compliance review--An
[on-site] examination of motor carrier operations to determine
whether a motor carrier meets the safety fitness standard.
(2)[(B)] Culpability--An evaluation
of the blame worthiness of the violator's conduct or actions.
(3)[(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.
(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 FMCSRs
and applicable HMRs and to gather critical safety data needed to make
an assessment of the carrier's safety performance and basic safety
management controls. Safety audits do not result in safety ratings.
(5)[(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.
(6)[(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.
(7)[(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.
(8)[(G)] For the purposes of
safety ratings, Final Departmental Decision is defined as:
(A)[(i)] the letter notifying
the carrier of a satisfactory safety rating, issued under subsection
(b)(3)(D) [paragraph (4)(D)] of this section [
subsection];
(B)[(ii)] the letter notifying
the motor carrier of a conditional safety rating on the expiration
of the time period in subsection (b)(3)(D)(ii) [paragraph
(4)(D)(ii)] of this section [subsection],
unless this changed earlier as a result of the department granting
a request to change the safety rating or a departmental review;
(C)[(iii)]the letter notifying
the motor carrier of a final unsatisfactory safety rating issued under
subsection (b)(3)(D)(iii) [paragraph (4)(D)(iii)]
of this section [subsection]; or
(D)[(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.
(b)Compliance Reviews.
(1)[(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.
(2)[(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).
(3)[(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) - (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 five (5) [5] business days of
the expiration of the time periods set out in paragraph (3)(C) [
(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 six (6) [6]
months or less, the timeline in subsection (b)(3)(G)(iii) [
paragraph (a)(4)(G)(iii)] of this section [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 subsection (b)(3)(G)(iii) [
paragraph (a)(4)(G)(iii)] 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 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 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 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 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, and
equivalent state regulations contained in Texas Transportation Code,
Chapter 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,
and equivalent state regulations contained in Texas Transportation
Code, Chapter 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 (3)(G)(iv) or (v) [(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 (3)(H) [
(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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