37 Tex. Admin. Code § 4.15 - Compliance Review and Safety Audit Programs
(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 and applicable Hazardous Materials Regulations and to gather
critical safety data needed to assess 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.
Notes
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