37 TAC §§4.11 - 4.15, 4.21
The Texas Department of Public Safety proposes amendments
to Chapter 4, Subchapter B, §§4.11 - 4.15 and §4.21, concerning
Regulations Governing Transportation Safety.
The amendment to §4.11 updates the rule so that it reflects February
1, 2006 in subsection (a). The amendment is necessary to ensure that the Federal
Motor Carrier Safety Regulations, incorporated by reference in the section,
reflect all amendments and interpretations issued through that particular
date.
An amendment to §4.12 is necessary to correct an inaccuracy made in
citing the Safe, Accountable, Flexible, Efficient Transportation Equity Act:
A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59) within this section. A second
amendment is being made to §4.12 to remove outdated language.
An amendment to §4.13 are necessary in order to clarify that Level
I inspections conducted on vehicles containing non-bulk quantities of hazardous
materials, cargo tank vehicles, vehicles containing other bulk packaging,
and passengers vehicles also count towards the general 32 Level I inspection
requirement per calendar year.
An amendment to §4.14 is necessary to clarify how the department will
determine if a municipality meets the population threshold amounts listed
in Texas Transportation Code, §644.101. Additional amendments to §4.14
are necessary to clarify that paper copies of roadside inspection reports
must also be sent to the department for timely quality control of uploaded
data and that certified municipalities and counties can be decertified for
reporting data to the department in an untimely manner.
An amendment to §4.15 is necessary to clarify when a final unsatisfactory
safety rating and order to cease all intrastate transportation becomes effective
when a motor carrier evades service of these documents. An additional amendment
to §4.15 is necessary in order to specify procedures for issuing an Order
to Cease all or part of a motor carrier's intrastate operations when they
constitute an Imminent Hazard.
An amendment to §4.21 is necessary to clarify that a dilute positive
drug test is considered a valid positive test for reporting purposes. However,
a dilute negative drug test is not considered a valid positive test for reporting
purposes.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the amendments are in effect there will be no fiscal
implications for state or local government, or local economies.
Mr. Ybarra also determined that for each year of the first five-year period
the amendments in effect the public benefit anticipated as a result of enforcing
the amended 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. There is no adverse economic impact
anticipated for individuals, small businesses, or micro-businesses.
Comments on the proposal may be submitted to Mark Rogers, Major, Texas
Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087,
Austin, Texas 78773-0500, (512) 424-2116.
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.
§4.11.General Applicability and Definitions.
(a)
General. The director of the Texas Department of Public
Safety incorporates, by reference, the Federal Motor Carrier Safety Regulations,
Title 49, Code of Federal Regulations, Parts 40, 380, 382, 385, 386, 387,
390 - 393, and 395 - 397 including all interpretations thereto, as amended
through
February
[
October
] 1,
2006
[
2005
]. All other references in this subchapter to the Code of Federal
Regulations also refer to amendments and interpretations issued through
February
[
October
] 1,
2006
[
2005
].
The rules adopted herein are to ensure that:
(1) - (4)
(No change.)
(b) - (c)
(No change.)
§4.12.Exemptions and Exceptions.
(a)
(No change.)
(b)
Exceptions. Exceptions adopted by the director of the Texas
Department of Public Safety not specified in Texas Transportation Code, §644.053,
are as follows:
(1) - (6)
(No change.)
[(7)
Texas Transportation Code, Chapter 642,
concerning identifying markings on commercial motor vehicles shall take precedence
over Title 49, Code of Federal Regulations, Part 390.21, for vehicles operated
in intrastate commerce.]
(7)
[
(8)
] Title 49, Code of Federal Regulations,
Part 390.23 (Relief from Regulations), is adopted for intrastate motor carriers
with the following exceptions:
(A)
Title 49, Code of Federal Regulations, Part 390.23(a)(2)
is not applicable to intrastate motor carriers making emergency residential
deliveries of heating fuels or responding to a pipeline emergency, provided
the carrier:
(i)
documents the type of emergency, the duration of the emergency,
and the drivers utilized; and
(ii)
maintains the documentation on file for a minimum of six
months. An emergency under this paragraph is one that if left unattended would
result in immediate serious bodily harm, death or substantial property damage
but does not include routine requests to re-fill empty propane gas tanks.
(B)
The requirements of Title 49, Code of Federal Regulations,
Parts 390.23(c)(1) and (2), for intrastate motor carriers shall be:
(i)
the driver has met the requirements of Texas Transportation
Code, Chapter 644; and
(ii)
the driver has had at least eight consecutive hours off-duty
when the driver has been on duty for 15 or more consecutive hours, or the
driver has had at least 34 consecutive hours off duty when the driver has
been on duty for more than 70 hours in seven consecutive days.
(8)
[
(9)
] Title 49, Code of Federal Regulations,
Part 380, (Subparts A-D), is not adopted for intrastate motor carriers and
drivers. Title 49, Code of Federal Regulations, Part 380 (Subpart E) is adopted
for intrastate motor carriers and drivers. Intrastate motor carriers and drivers
must complete the requirements of Title 49, Code of Federal Regulations, Part
380.500 on or before July 31, 2005.
(9)
[
(10)
] In accordance with §4132
of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETA-LU) (Pub. L.
109-59
[
10-59
]),
the hours of service regulations in this subchapter are not applicable to
utility service vehicles that operate in either interstate or intrastate commerce.
Utility service vehicles are those vehicles operated by public utilities,
as defined in the Public Utility Regulatory Act, the Gas Utility Regulatory
Act, the Texas Water Code, Title 49, Code of Federal Regulations, Part 395.2,
or other applicable regulations, and charged with the responsibility for maintaining
essential services to the public to protect health and safety.
§4.13.Authority to Enforce, Training and Certificate Requirements.
(a) - (b)
(No change.)
(c)
Maintaining Certification.
(1)
To maintain certification to conduct inspections and enforce
the federal safety regulations, a peace officer must:
(A) - (B)
(No change.)
(C)
If the officer is certified to perform hazardous materials
inspections, at least eight inspections (Levels I, II or V) shall be conducted
on vehicles containing non-bulk quantities of hazardous materials per calendar
year.
Level I inspections on vehicles containing non-bulk quantities
of hazardous materials may also be used to satisfy the 32 Level I inspections
required by subparagraph (B) of this paragraph.
(D)
If the officer is certified to perform cargo tank inspections,
at least eight inspections (Levels I, II or V) shall be conducted on vehicles
transporting hazardous materials in cargo tanks per calendar year.
Level
I inspections on cargo tank vehicles transporting hazardous materials may
also be used to satisfy the 32 Level I inspections required by subparagraph
(B) of this paragraph.
(E)
If the officer is certified to perform other bulk packaging
inspections, at least eight of the inspections (Levels I, II or V) shall be
conducted on vehicles transporting hazardous materials in other bulk packaging
per calendar year.
Level I inspections on vehicles containing other bulk
packaging may also be used to satisfy the 32 Level I inspections required
by subparagraph (B) of this paragraph.
(F)
If the officer is certified to perform passenger vehicle
inspections, at least eight of the inspections (Levels I or V) shall be conducted
on passenger vehicles such as motor coaches/buses per calendar year.
Level I inspections on passenger vehicles may also be used to satisfy the
32 Level I inspections required by subparagraph (B) of this paragraph.
(2) - (4)
(No change.)
§4.14.Municipal and County Certification Requirements.
(a)
Certain peace officers from an authorized municipality
or county may be trained and certified to enforce the federal safety regulations
provided the municipality or county:
(1) - (5)
(No change.)
(6)
provides all roadside inspection data to the department
through electronic systems that are compatible with the department's system
within 15 business days of the inspection
, and forwards paper copies
immediately thereafter
; and
(7)
(No change.)
(b)
Substantial non compliance with the provisions of the Memorandum
of Understanding or the training, officer certification, or data-sharing requirements
by the municipality or county,
including timeliness of reporting data,
will constitute grounds to decertify the municipality's or county's
authority to enforce the federal safety regulations.
(c) - (d)
(No change.)
(e)
In determining whether a municipality
meets the population threshold requirements of Texas Transportation Code, §644.101,
the department will use either:
(1)
the most recent federal decennial census, or
(2)
a resolution or proclamation issued under the authority
of the governing body of the municipality that attests and certifies that
the population of the municipality, including the authorized extraterritorial
jurisdiction of the municipality, meets or exceeds the population threshold
amounts listed in Texas Transportation Code, §644.101.
§4.15.Safety Audit Program.
(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 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.
(1) - (3)
(No change.)
(4)
Safety Fitness Rating.
(A) - (C)
(No change.)
(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) - (iii)
(No change.)
(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) - (I)
(No change.)
(b)
Imminent Hazard.
(1)
Regardless of whether an Unsatisfactory Safety Rating has
become final under subsection (a)(4)(C) of this section, if the Manager of
the Motor Carrier Bureau, or his designee, determines that a motor carrier's
operations constitute an Imminent Hazard, the Manager or his 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).
(c)
[
(b)
] 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, 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.
§4.21.Reports of Valid Positive Results on Alcohol and Drug Tests.
(a)
Reporting Requirement. An employer required under the federal
safety regulations to conduct alcohol and controlled substance testing of
employees shall report to the department a valid positive result on an alcohol
or controlled substance test performed as part of the carrier's alcohol and
drug testing program or consortium, as defined by Title 49, Code of Federal
Regulations, Part 382, on an employee of the carrier who holds a commercial
driver license issued under Texas Transportation Code, Chapter 522.
(1) - (4)
(No change.)
(5)
A dilute positive drug test under Title
49, Code of Federal Regulations, Part 40.197(a) is a valid positive result.
A dilute negative drug test is not a valid positive test. A positive drug
test from a recollection under Title 49, Code of Federal Regulations, Part
40.197(b) is a valid positive test.
(b)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 14, 2006.
TRD-200601597
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: April 30, 2006
For further information, please call: (512) 424-2135