The Texas Department of Public Safety (the department) proposes amendments to §§4.11, 4.12, 4.16, 4.17, 4.19, and 4.21 concerning Regulations Governing Transportation Safety.

The first proposed amendment to §4.11 updates the rule so that it reflects January 1, 2010 in subsection (a). This amendment is necessary to ensure that the Federal Motor Carrier Safety Regulations, incorporated by reference in this section, reflect all amendments and interpretations issued through that particular date for the subchapter. The second amendment to §4.11 ensures the applicability of the drug and alcohol testing requirements of Title 49, Code of Federal Regulations, Part 382 to all drivers/motor carriers subject to the commercial driver's license requirements of Texas Transportation Code, Chapter 522, regardless of whether they meet all of the requirements of Part 383. This change is necessary because the 81st Texas Legislature enacted Texas Transportation Code, Chapter 522 as the standard for requiring commercial driver's licenses in this state and therefore did not adopt Title 49, Code of Federal Regulations, Part 383. The final amendment to §4.11 is necessary to ensure that any person prohibited from performing safety-sensitive functions due to prohibited conduct, is prohibited from operating any vehicle regulated under this chapter.

The amendment to §4.12 is necessary to clarify the non-applicability of the United States Department of Transportation number requirements of Texas Transportation Code, Chapter 643 for vehicles/motor carriers operating exclusively in intrastate commerce that are excluded from the requirements of Texas Transportation Code, Chapter 643.

The proposed amendment for §4.16 modifies the method used to calculate administrative penalties in certain cases. This amendment is necessary to provide that when a carrier fails to provide credible information regarding the size of its operations, or when a carrier has been penalized repeatedly for the same violation, the maximum penalties may be assessed against the motor carrier. The final amendment to this section is required as a result of legislation passed by the 81st Texas Legislature that transferred the responsibility of the administration of Texas Transportation Code, Chapter 643 from the Texas Department of Transportation to the Texas Department of Motor Vehicles.

The proposed amendment for §4.17 is necessary to provide more flexibility in evaluating informal appeals "informally," by no longer requiring the designee of the director to be a "hearing officer."

The first proposed amendment for §4.19 is necessary to allow a more streamlined procedure for transmitting requests for action if the executive director designates another to accept such requests from the department. The final amendment is to this section is required as a result of legislation passed by the 81st Texas Legislature that transferred the responsibility of the administration of Texas Transportation Code, Chapter 643 from the Texas Department of Transportation to the Texas Department of Motor Vehicles.

The proposed amendment for §4.21 is necessary to implement some of the regulations required by SB 481, relating to the regulation of certain contract carriers of railroad employees, passed by the 81st Legislature, effective September 1, 2009.

Cheryl MacBride, Assistant Director, Finance, has determined that for each year of the first five-year period the rules are in effect there will be no fiscal implications for state or local government, or local economies.

In addition, Ms. MacBride has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be to ensure to the public greater compliance by motor carriers with all of the statutes and regulations pertaining to the safe operation of commercial vehicles in this state.

Ms. MacBride has also determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

The department has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to these rules. Accordingly, the department is not required to complete a takings impact assessment regarding these rules.

The Texas Department of Public Safety, in accordance with the Administrative Procedures and Texas Register Act, Texas Government Code, §2001, et seq., and Texas Transportation Code, Chapter 644, will hold a public hearing on January 7, 2010, at 9:00 a.m., at the Texas Department of Public Safety, Texas Highway Patrol Division, Building G Annex, 5805 North Lamar, Austin, Texas. The purpose of this hearing is to receive comments from all interested persons regarding adoption of the proposed amendments to Administrative Rules §§4.11, 4.12, 4.16, 4.17, 4.19, and 4.21 regarding Hazardous Material and Transportation Safety, proposed for adoption under the authority of Texas Transportation Code, Chapter 644, which provides that the director shall, after notice and a public hearing, adopt rules regulating the safe operation of commercial motor vehicles.

Persons interested in attending this hearing are encouraged to submit advance written notice of their intent to attend the hearing and to submit a written copy of their comments. Correspondence should be addressed to Major David Palmer, Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas 78773-0500.

Persons with special needs or disabilities who plan to attend this hearing and who may need auxiliary aids or services are requested to contact Major David Palmer at (512) 424-2775 at least three working days prior to the hearing so that appropriate arrangements can be made.

Other comments on this proposal may be submitted to Major David Palmer, Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas 78773-0500, (512) 424-2775.

The amendments are proposed pursuant to Texas Transportation Code, §644.051, which authorizes the director to adopt rules regulating the safe transportation of hazardous materials and the safe operation of commercial motor vehicles; and authorizes the director to adopt all or part of the federal safety regulations, by reference. Texas Transportation Code, §644.051 is affected by this proposal.