37 Tex. Admin. Code § 4.16 - Administrative Penalties, Payment, Collection, and Settlement of Penalties
(a) Administrative Penalties.
(1) The compliance review may result in the
initiation of an enforcement action based upon the number and degree of
seriousness of the violations discovered during the review as well as those
factors listed in Title 49, Code of Federal Regulations, Part 385.7 . As a
result of the enforcement action, the department may impose an administrative
penalty against a motor carrier who violates a provision of the Texas
Transportation Code, Title 7, Subtitle B, Chapter 522 (relating to Commercial
Driver's License), Subtitle C, Chapters 541 - 600 (relating to the Rules of the
Road), and Subtitle F, Chapter 644 (relating to Commercial Motor Vehicles),
including any amendments not codified in the Texas Transportation Code. Each of
these provisions relates to the safe operation of a commercial motor vehicle
under Texas Transportation Code, §
644.153(b).
(2) The department shall have discretion in
determining the appropriate amount of the administrative penalty assessed for
each violation, and adopts the Federal Uniform Fine Assessment Program as a
method of determining penalty assessment. A penalty under this section may not
exceed the maximum penalty provided for a violation of a similar federal safety
regulation. The department retains the authority to reduce the administrative
penalty calculated by the Federal Uniform Fine Assessment Program when the
interests of justice require it.
(3) For motor carriers whose verified annual
gross revenue is less than one million dollars, the department will assess an
alternative administrative penalty according to the schedule listed in the
figure, if the alternative administrative penalty would be less than the amount
calculated by the Federal Uniform Fine Assessment Program.
(A) General motor
carriers may be assessed an alternative administrative penalty, as listed in
Table 1, that is the following percentage of their gross revenue.
(B) Passenger or hazardous materials motor
carriers may be assessed an alternative administrative penalty, as listed in
Table 2, that is the following percentage of their gross revenue
(4) Under certain circumstances,
the department may deviate from the Federal Uniform Fine Assessment Program and
instead issue up to the maximum penalty provided. These circumstances include,
but are not limited to, the following:
(A) A
motor carrier who does not provide credible information about the size of its
operations (revenue, fleet mileage, number of trucks, and number of drivers),
may be subject to maximum penalties under federal law for violations
cited.
(B) A carrier which has been
penalized (Notice of Claim issued) twice in the previous two years or three
times in the previous six years for a given violation may be subject to maximum
penalties for a current violation of the same section. Any prior violations
used in accordance with this paragraph which are overturned on appeal before a
current penalty becomes a "final agency decision" will result in
reconsideration, and recalculation if applicable, of the current penalty
amount.
(5) In no case
will any penalty or group of penalties assessed according to this section be
less than a total of $500.
(6) The
department will send a Notice of Claim to the person(s), Firm, or business in
violation of this subchapter by certified mail, return receipt requested, by
personal service, or another manner of delivery that records the receipt of the
notice by the person responsible requiring a response within 20 business days.
The notice will contain the following language in bold, large face type:
"FAILURE TO PAY THIS CLAIM OR RESPOND, AS SPECIFIED IN THE NOTICE OF CLAIM,
WITHIN 20 BUSINESS DAYS WILL RESULT IN THIS NOTICE OF CLAIM BEING DEEMED A
'FINAL DEPARTMENT DECISION.' A PERSON WHO IS SUBJECT TO AN ADMINISTRATIVE
PENALTY IMPOSED BY THE DEPARTMENT UNDER TEXAS TRANSPORTATION CODE, §
644.153 IS
REQUIRED TO PAY THE ADMINISTRATIVE PENALTIES OR RESPOND TO THE DEPARTMENT'S
NOTICE OF CLAIM. A PERSON WHO FAILS TO PAY, OR BECOMES DELINQUENT IN THE
PAYMENT OF THE ADMINISTRATIVE PENALTIES IMPOSED BY THE DEPARTMENT UNDER TEXAS
TRANSPORTATION CODE, §
644.153 SHALL NOT
OPERATE OR DIRECT THE OPERATION OF A COMMERCIAL MOTOR VEHICLE ON THE HIGHWAYS
OF THIS STATE UNTIL SUCH TIME AS THE ADMINISTRATIVE PENALTIES HAVE BEEN
REMITTED TO THE DEPARTMENT."
(b) Payment, Collection and Settlement of
Administrative Penalty.
(1) Payment. A person
who is subject to an administrative penalty imposed by the department as
authorized by Texas Transportation Code, §
644.153(c)
is required to pay the administrative penalty. If payment of costs, fees,
expenses, and reasonable and necessary attorney's fees incurred by the state
has been ordered, any payment of less than the full amount owed will be applied
first to the costs, fees, expenses and attorney's fees, then the balance of the
payment, if any, will be applied to the administrative penalty. The
administrative penalty may be paid through one of the following options:
(A) Full Payment. Full payment of the
administrative penalty in the form of a check, cashier's check, or money order
made payable to the Department of Public Safety shall be submitted to the Texas
Department of Public Safety, Attn: Motor Carrier Bureau, MSC 0522, 6200
Guadalupe, Building P, Austin, Texas 78752-4019. The department may allow
payments to be made by electronic funds transfer or valid credit card issued by
a financial institution chartered by a state or the federal government or by a
nationally recognized credit organization approved by the department.
(i) The department may assess a discount,
convenience, or service charge for a payment transaction for electronic funds
transfers or credit card payments in an amount that will cover the direct costs
to the department for accepting that payment.
(ii) The department may assess a service
charge of $30 for a payment transaction that is dishonored or refused for lack
of funds or insufficient funds.
(iii) Any charge added to an administrative
penalty under paragraph (1)(A)(i) and (1)(A)(ii) of this subsection must be
paid in full, along with the administrative penalty. The department's remedies,
including issuing and continuing an impoundment order, apply to the charges as
well as the administrative penalty.
(B) Installment Payments.
(i) A person(s), firm, or business may, upon
approval of the director or the director's designee, be allowed to make
installment payments of an administrative penalty, costs, fees, expenses, and
reasonable and necessary attorney's fees incurred by the state upon submission
of adequate proof of inability to pay the full amount of the claim. An
application shall be submitted on a form approved by the department.
(ii) The person(s), firm, or business
requesting the installment agreement must submit adequate documentation to
support the request and make all relevant financial records of the person(s),
firm, or business available to the department for inspection and
verification.
(iii) In the event of
a default of the installment agreement by the person(s), firm, or business,
then the remaining balance of the installment agreement will be due
immediately.
(iv) Upon default
under an installment agreement, or failure to respond to the notice of claim
within 20 business days, the person(s), firm, or business is no longer eligible
for installment payments.
(v)
Installment payments will be in the form, and subject to service charges,
described in paragraph (1)(A) of this subsection.
(2) Non-Payment of Administrative
Penalty. A person who fails to pay, reverses an electronic funds transfer
payment or credit card payment, or otherwise becomes delinquent in the payment
of the administrative penalty imposed by the department as authorized by Texas
Transportation Code, §
644.153(c)
shall not operate or direct the operation of a commercial motor vehicle on the
highways of this state until such time as the administrative penalty has been
remitted to the department. The department will make every effort to collect an
administrative penalty once an enforcement action has been deemed as a Final
Departmental Decision, including referring the administrative penalty to the
Office of the Attorney General, or issuing an Impoundment Order.
(A) Issuance of an Impoundment Order.
Pursuant to Texas Transportation Code, §
644.153(o) -
(s), the department will issue an Impoundment
Order for the impoundment of any commercial motor vehicle that is operated or
directed by the person(s), firm, or business that fails to pay an
administrative penalty issued under this subchapter.
(B) Timing and Content of Impoundment Order.
The department shall issue an Impoundment Order if the person(s), firm, or
business fails to respond as specified to the Notice of Claim within 20
business days, or becomes delinquent in the payment of the full amount under
subsection (b)(1)(A) of this section or any installment payments under
subsection (b)(1)(B) of this section when they become due. The Impoundment
Order will contain the following information:
(i) Motor Carrier's name, address, city, zip
code and telephone number;
(ii) The
motor carrier's Texas Department of Motor Vehicles, United States Department of
Transportation, or Motor Carrier number, if any;
(iii) The amount of delinquent penalty
assessment;
(iv) The date the
Impoundment Order was issued;
(v) A
contact number for the Motor Carrier Bureau;
(vi) Notice that the Impoundment Order will
be lifted upon receipt of full payment of the administrative penalty as
described in paragraph (5) of this subsection; and,
(vii) In bold, conspicuous letters, notice
that the carrier is responsible for all costs of storage of the vehicle and its
cargo, and towing.
(3) Prior to impounding any vehicle, the
trooper shall verify the Impoundment Order is still valid. Verification can
only be made by the Manager of the Motor Carrier Bureau or the Manager's
designee during regular business hours, or via electronic inquiry into the
Motor Carrier Bureau's Vehicle Impoundment Database after regular business
hours. If a trooper is unable to verify the Impoundment Order is in force, then
the vehicle shall not be impounded.
(4) Once a vehicle is impounded, the trooper
impounding the vehicle shall immediately ensure the motor carrier is notified
of impoundment of the vehicle. The trooper will inform the motor carrier of the
name, location, and telephone number of the vehicle storage facility where the
vehicle is impounded, notice the vehicle will not be released until the
administrative penalty has been paid, and a contact number for the Motor
Carrier Bureau. When a vehicle is impounded after regular business hours, the
trooper will notify the Motor Carrier Bureau as soon as possible but not later
than the next regular business day.
(5) Release of Impoundment Order and
Impounded Vehicles.
(A) To cancel the
Impoundment Order and to release a vehicle from impoundment, the motor carrier
shall pay the administrative penalty in full, including costs, fees, expenses,
and reasonable and necessary attorney's fees incurred by the state.
(B) The payment of the administrative penalty
must be for the full amount. The payment must be made by cashier's check or
money order payable to the Texas Department of Public Safety.
(C) The payment can be made in one of two
ways only:
(i) by sending it to the following
address as indicated: Texas Department of Public Safety, Motor Carrier Bureau,
MSC 0522, 6200 Guadalupe, Bldg. P, Austin, Texas 78752-4019, Attn: Accounting
Clerk, Impoundment Notice; or
(ii)
directly to the trooper at the time of the actual impoundment or to any
Commercial Vehicle Enforcement employee at any department regional, district or
sub-district office. If payment is made on an impounded vehicle after regular
business hours, the trooper will notify the Motor Carrier Bureau as soon as
possible but not later than the next regular business day.
(D) The impounded vehicle will be released
and the impoundment order will be cancelled only upon receipt of payment as
specified under paragraph (5)(C)(i) or (ii) of this subsection.
Notes
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