(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 [FMCSRs] and applicable Hazardous
Materials Regulations [HMRs] and to gather critical
safety data needed to assess [make an assessment of]
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
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) business days of the expiration of the time
periods set out in paragraph (3)(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) months or less, the timeline
in subsection (b)(3)(G)(iii) of this section 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)
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) 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) 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.
(H)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, §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, §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
(3)(C) of this subsection 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 a 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 (3)(G) of this subsection.
(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.
(I)A final safety rating constitutes a final agency
decision. Any review of such decision is subject to Texas Government
Code, Chapter 2001. Judicial review is subject to the substantial
evidence rule under Texas Government Code, §2001.174.
(c)Safety Audits.
(1)The department may perform safety audits on interstate
motor carriers domiciled in Texas that are part of the New Entrant
Safety Assurance Program under Title 49, Code of Federal Regulations,
Part 385, Subpart D. The department will comply with all requirements
of Title 49, Code of Federal Regulations, Part 385, Subpart D when
carrying out safety audits.
(2)Safety audits will be conducted by an individual
who is certified to conduct new entrant safety audits. Safety audits
may be conducted at the carrier's premises or at an off-site location
chosen by the department.
(3)Motor carriers that are part of the New Entrant
Safety Assurance Program will make records and documents required
for a safety audit available for inspection upon the request of an
individual certified to perform safety audits.
(A)The department will report to the Federal Motor
Carrier Safety Administration any motor carriers who:
(i)fail to respond to attempts by the department to
make contact to initiate a safety audit,
(ii)refuse to meet with the department to conduct
the safety audit, and/or
(iii)refuse to provide records and documents required
for the safety audit.
(B)Motor carriers who do not complete a required safety
audit may have their interstate operating authority revoked by the
Federal Motor Carrier Safety Administration.
(4)Safety audits will review a motor carrier's safety
management systems and practices to determine compliance with federal
safety regulations. The safety audit will also be used to educate
the motor carrier on safety compliance. The reviewer's findings will
be reported to the Federal Motor Carrier Safety Administration. Safety
audits will have a pass or fail determination and will not assign
a safety rating to a motor carrier.
(5)In the course of a safety audit, if it is discovered
that the motor carrier has committed any of the actions listed in
Title 49, Code of Federal Regulation, Part 385.308(a), the department
may schedule a compliance review to carry out a more thorough examination
of the motor carrier's safety management.
(d)Imminent Hazard.
(1)Regardless of whether an unsatisfactory safety
rating has become final under subsection (b)(3)(C) of this section,
if the manager of the Motor Carrier Bureau or their designee determines
that a motor carrier's operations constitute an imminent hazard, the
manager or their designee shall issue an order to cease all or part
of the motor carrier's commercial motor vehicle operations.
(2)In making any such order, no restrictions shall
be imposed on any employee or employer beyond that required to abate
the hazard.
(3)Opportunity for review of any such order shall
be in the manner described in §4.18 of this title (relating to
Intrastate Operating Authority Out-of-Service Review).
(4)For purposes of all enforcement the department
is authorized to take, any operations in violation of an imminent
hazard determination will be treated as operating with a final unsatisfactory
rating issued under subsection (b)(3)(D)(iii) of this section.
(5)The practice of a motor carrier
employing unqualified drivers with a fraudulent foreign commercial
driver license is an imminent hazard to the public. The manager of
the Motor Carrier Bureau or their designee shall issue an order to
cease the motor carrier's commercial motor vehicle operations, which
will remain in effect until the motor carrier submits proof of corrective
action and all current drivers are verified to be properly qualified
to operate commercial motor vehicles requiring a commercial driver
license. Approval of the submitted corrective action and removal of
the order to cease will be made by the manager of the Motor Carrier
Bureau or their designee.
(e)Release of Safety Rating Information.
(1)The safety rating assigned to a motor carrier will
be made available to the public upon request.
(2)Requests should be addressed to the Texas Department
of Public Safety, Motor Carrier Bureau, P.O. 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.
(f)Foreign Commercial Driver License
Holder Requirements.
(1)Motor carriers that employ drivers who possess
a valid foreign jurisdiction commercial driver license (CDL) or commercial
driver license permit (CLP) shall retain a legible copy of the following
items:
(A)the commercial driver license or commercial driver
license permit, front and back if applicable, and
(B)the Work Authorization Card (Work Visa), front
and back if applicable.
(2)These documents may be kept in printed or digital
format at the motor carrier's principal place of business (PPOB) or
where the motor carrier's driver qualification files are maintained.
(3)A motor carrier must maintain the documents specified
by this section for the duration of the driver's employment and then
for one year after the driver is no longer employed.
(4)A motor carrier must make all records and information
in this file available to an officer or non-commissioned employee
of the department upon request and as part of any investigation or
safety audit within the timeframe specified by the requesting representative.
(5)A motor carrier that employs foreign CDL or CLP
drivers who only operate in counties bordering the United Mexican
States is not required to adhere to the rules of this section.
The agency certifies that legal counsel has
reviewed
the proposal and found it to be within the state agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on March 27, 2024
TRD-202401291 D. Phillip Adkins
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: May 12, 2024
For further information, please call: (512) 424-5848
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