Part 1. TEXAS DEPARTMENT OF PUBLIC SAFETY
Chapter 4. COMMERCIAL VEHICLE REGULATIONS AND ENFORCEMENT PROCEDURES
Subchapter A. REGULATIONS GOVERNING HAZARDOUS MATERIALS
The Texas Department of Public Safety proposes amendments to Chapter 4, Subchapter A, §4.1, concerning Regulations Governing Hazardous Materials.
Amendment to §4.1 is necessary to ensure that the Federal Hazardous Material Regulations, incorporated by reference in this section, reflect all amendments and interpretations issued through April 1, 2008.
Oscar Ybarra, Chief of Finance, has determined that for each year of the first five-year period the rule is in effect there will be no fiscal implications for state or local government or local economies.
Mr. Ybarra also has 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.
In addition, Mr. Ybarra has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule 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.
The Department has determined that this proposal is not a "major environmental rule" as defined by Governmental Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk 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 a 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 Governmental Code does not apply to this rule. Accordingly, the Department is not required to complete a takings impact assessment regarding this rule.
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 April 10, 2008, 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 Rule §4.1 regarding Hazardous Material and Transportation Safety, proposed for adoption under the authority of Texas Government Code, §411.018, and 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 Mark Rogers, 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 Rogers at (512) 424-7509 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 Mark Rogers, Major, Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas 78773-0500, (512) 424-7509.
The amendments are proposed pursuant to Texas Government Code, §411.018, which authorizes the director to adopt all or part of the federal hazardous materials rules by reference; and Texas Transportation Code, §644.051, which authorizes the director to adopt all or part of the federal safety regulations by reference.
Texas Government Code, §411.018 and Texas Transportation Code, §644.051 are affected by this proposal.
§4.1.Transportation of Hazardous Materials.
(a) The director of the Texas Department of Public
Safety incorporates, by reference, the Federal Hazardous Materials
Regulations, Title 49, Code of Federal Regulations, Parts 107 (Subpart
G), 171 - 173, 177, 178, and 180, including all interpretations thereto,
for commercial vehicles operated in intrastate, interstate, or foreign
commerce, as amended through April 1, 2008 [October 1, 2007
]. All other references in this section to the Code of
Federal Regulations also refer to amendments and interpretations issued
through April 1, 2008 [October 1, 2007].
(b) Explanations and Exceptions.
(1) Certain terms when used in the federal regulations as adopted in subsection (a) of this section will be defined as follows:
(A) the definition of motor carrier will be the same as that given in Texas Transportation Code, §643.001(6);
(B) hazardous material shipper means a consignor, consignee, or beneficial owner of a shipment of hazardous materials;
(C) interstate or foreign commerce will include all movements by commercial motor vehicle, both interstate and intrastate, over the streets and highways of this state;
(D) department means the Texas Department of Public Safety;
(E) FMCSA field administrator, as used in the federal motor carrier safety regulations, means the director of the Texas Department of Public Safety or the designee of the director for vehicles operating in intrastate commerce;
(F) farm vehicle means any vehicle or combination of vehicles controlled and/or operated by a farmer or rancher being used to transport agriculture products, farm machinery, and farm supplies to or from a farm or ranch; and
(G) private carrier means any person not included in the terms "common carrier by motor vehicle" or "contract carrier by motor vehicle" who transports by commercial motor vehicle property of which the person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent or bailment, or in furtherance of commerce.
(2) All references in Title 49, Code of Federal Regulations, Parts 107 (Subpart G), 171 - 173, 177, 178, and 180 made to other modes of transportation, other than by motor vehicles operated on streets and highways of this state, will be excluded and not adopted by this department.
(3) Regulations adopted by this department, including the federal motor carrier safety regulations, will apply to farm tank trailers used exclusively to transport anhydrous ammonia from the dealer to the farm. The usage of non-specification farm tank trailers by motor carriers to transport anhydrous ammonia must be in compliance with Title 49, Code of Federal Regulations, §173.315(m).
(4) The reporting of hazardous material incidents as required by Title 49, Code of Federal Regulations, §171.15 and §171.16 for shipments of hazardous materials by highway is adopted by the department.
(5) Regulations adopted by this department, including the federal motor carrier safety regulations, will apply to an intrastate motor carrier transporting a flammable liquid petroleum product in a cargo tank. The usage of non-specification cargo tanks by motor carriers for the intrastate transportation of flammable liquid petroleum products must be in compliance with Title 49, Code of Federal Regulations, §173.8.
(6) Regulations and exceptions adopted herein are applicable to all drivers and vehicles transporting hazardous materials in interstate, foreign, or intrastate commerce.
(7) Nothing in this section shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operation and employee safety and health.
(8) Penalties assessed for violations of the regulations adopted herein will be based upon the provisions of Texas Transportation Code, Chapter 644, and §4.16 of this title (relating to Administrative Penalties, Payment, Collection and Settlement of Penalties).
(9) A peace officer certified, in accordance with §4.13 of this title (relating to Authority to Enforce, Training and Certificate Requirements), to enforce the Federal Hazardous Material Regulations, as adopted in this section, may declare a vehicle out-of-service using the North American Standard Hazardous Materials Out-of-Service Criteria as a guideline.
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 12, 2008.
TRD-200801403
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: April 27, 2008
For further information, please call: (512) 424-2135
37 TAC §§4.11, 4.13 - 4.15, 4.17
The Texas Department of Public Safety proposes amendments to Chapter 4, Subchapter B, §§4.11, 4.13 - 4.15, and 4.17 concerning Regulations Governing Transportation Safety.
The first amendment proposed for §4.11 updates the rule so that it reflects April 1, 2008 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. A second amendment to §4.11 is necessary to clarify that the rules adopted also ensure that all drivers of commercial motor vehicles are properly qualified to operate these vehicles. A third amendment to §4.11 is necessary to clarify that motor carriers are only subject to these rules when operating a regulated commercial motor vehicle. A fourth amendment to §4.11 is necessary to clarify that a medical examination certificate can be issued for a period of less than 24 months by a medical examiner. Two additional amendments proposed for §4.11 correct grammatical errors in the text.
The amendment proposed for §4.13 updates the text to reflect changes contained in Senate Bill 330, as passed by the 80th Texas Legislature, pertaining to the locations where a non-commissioned employee of the department can conduct commercial motor vehicle inspections.
Amendments to §4.14 are necessary in order to further clarify certain general and data timeliness requirements for municipalities and counties participating in the commercial vehicle inspection program.
An amendment to §4.15 is necessary to allow for delivery of safety rating correspondence to a motor carrier at the last known location, address, electronic mail address, or facsimile number for the motor carrier. The second amendment to §4.15 clarifies that only compliance reviews resulting from a request to change a safety rating where the safety rating has been final for less than 6 months will be processed in accordance with the expedited timelines specified in the rule. The third amendment to §4.15 eliminates the term "streamlined compliance review" and replaces it with the term "follow-up compliance review". The fourth amendment to §4.15 allows the department to extend the final effective date of a safety rating for a motor carrier transporting passengers or hazardous materials for up to 30 days when the motor carrier has submitted evidence of corrective actions. The renumbering of certain paragraphs is also necessitated due to the proposed text of the amendments.
An amendment to §4.17 is necessary to allow the department to notify motor carriers of claims using electronic mail, provided the department verifies receipt by a responsible individual. A second amendment to §4.17 is necessary to set the deadline for responding to or appealing a notice of claim at 20 calendar days rather than 20 business days, which is consistent with the requirements of Texas Transportation Code, §644.153(e).
Oscar Ybarra, Chief of 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.
Mr. Ybarra has also determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the sections as proposed. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated negative impact on local employment.
In addition, Mr. Ybarra has also 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.
The department has determined that this proposal is not a "major environmental rule" as defined by 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 risk 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 a 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 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 April 10, 2008, 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, 4.13 - 4.15, and 4.17 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 Mark Rogers, 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 Rogers at (512) 424-7509 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 Mark Rogers, Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas 78773-0500, (512) 424-7509.
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 April 1, 2008 [October 1, 2007
]. All other references in this subchapter to the Code
of Federal Regulations also refer to amendments and interpretations
issued through April 1, 2008 [October 1, 2007].
The rules adopted herein are to ensure that:
(1) a commercial motor vehicle is safely maintained, equipped, loaded, and operated;
(2) the responsibilities imposed on a commercial motor vehicle's operator do not impair the operator's ability to operate the vehicle safely;
(3) the physical condition of a commercial motor vehicle's
operator enables the operator to operate the vehicle safely; [
and,]
(4) commercial motor vehicle operators are qualified, by reason of training and experience, to operate the vehicle safely; and,
(5) [(4)] the minimum levels
of financial responsibility for [
required to be maintained by
] motor carriers of property or passengers operating commercial
motor vehicles in interstate, foreign, or intrastate commerce is
maintained as required.
(b) Terms. Certain terms, when used in the federal regulations as adopted in subsection (a) of this section, will be defined as follows:
(1) the definition of motor carrier will be the same as that given in Texas Transportation Code, §643.001(6) when vehicles operated by the motor carrier meet the applicability requirements of subsection (c) of this section;
(2) hazardous material shipper means a consignor, consignee, or beneficial owner of a shipment of hazardous materials;
(3) interstate or foreign commerce will include all movements by motor vehicle, both interstate and intrastate, over the streets and highways of this state;
(4) department means the Texas Department of Public Safety;
(5) director means the director of the Texas Department of Public Safety or the designee of the director;
(6) FMCSA field administrator, as used in the federal motor carrier safety regulations, means the director of the Texas Department of Public Safety for vehicles operating in intrastate commerce;
(7) farm vehicle means any vehicle or combination of vehicles controlled and/or operated by a farmer or rancher being used to transport agriculture commodities, farm machinery, and farm supplies to or from a farm or ranch;
(8) commercial motor vehicle has the meaning assigned by Texas Transportation Code, §548.001(1) if operated intrastate; commercial motor vehicle has the meaning assigned by Title 49, Code of Federal Regulations, Part 390.5 if operated interstate;
(9) foreign commercial motor vehicle has the meaning assigned by Texas Transportation Code, §648.001;
(10) agricultural commodity is defined as an agricultural, horticultural, viticultural, silvicultural, or vegetable product, bees and honey, planting seed, cottonseed, rice, livestock or a livestock product, or poultry or a poultry product that is produced in this state, either in its natural form or as processed by the producer, including wood chips. The term does not include a product which has been stored in a facility not owned by its producer;
(11) planting and harvesting seasons are defined as
January 1 to December 31; [ and]
(12) producer is defined as a person engaged in the
business of producing or causing to be produced for commercial purposes
an agricultural commodity. The term includes the owner of a farm on
which the commodity is produced and the owner's tenant or sharecropper
; and[.]
(13) off-road motorized construction equipment includes but is not limited to motor scrapers, backhoes, motor graders, compactors, excavators, tractors, trenchers, bulldozers, and other similar equipment routinely found at construction sites and that is occasionally moved to or from construction sites by operating the equipment short distances on public highways. Off-road motorized construction equipment is not designed to operate in traffic and such appearance on a public highway is only incidental to its primary functions. Off-road motorized construction equipment is not considered to be a commercial motor vehicle as that term is defined in Texas Transportation Code, §644.001.
(c) Applicability.
(1) The regulations shall be applicable to the following vehicles:
(A) a vehicle or combination of vehicles with an actual gross weight, a registered gross weight, or a gross weight rating in excess of 26,000 pounds when operating intrastate;
(B) a farm vehicle or combination of farm vehicles with an actual gross weight, a registered gross weight, or a gross weight rating of 48,000 pounds or more when operating intrastate;
(C) a vehicle designed or used to transport more than 15 passengers, including the driver; and
(D) a vehicle transporting hazardous material requiring a placard.
(E) a motor carrier transporting household goods for compensation in intrastate commerce in a vehicle not defined in Texas Transportation Code, §548.001(1) is subject to the record keeping requirements in Title 49, Code of Federal Regulations, Part 395 and the hours of service requirements specified in this subchapter.
(F) a foreign commercial motor vehicle that is owned or controlled by a person or entity that is domiciled in or a citizen of a country other than the United States.
(G) a contract carrier transporting the operating employees of a railroad on a road or highway of this state in a vehicle designed to carry 15 or fewer passengers.
(2) The regulations contained in Title 49, Code of Federal Regulations, Part 392.9a, and all interpretations thereto, are applicable to motor carriers operating in intrastate commerce and to for-hire interstate motor carriers exempt from economic regulation. The term "operating authority" as used in Title 49, Code of Federal Regulations, Part 392.9a, for the motor carriers described in this paragraph, shall mean compliance with the registration requirements found in Texas Transportation Code, Chapter 643, for vehicles operating in intrastate commerce, or Texas Transportation Code, Chapters 643 or 645, for for-hire interstate motor carriers exempt from economic regulation. For purposes of enforcement of this paragraph, peace officers certified to enforce this chapter, shall verify that a motor carrier is not registered, as required in Texas Transportation Code, Chapters 643 or 645, before placing a motor carrier out-of-service. Motor carriers placed out-of-service under Title 49, Code of Federal Regulations, Part 392.9a may request a review under §4.18 of this chapter. All costs associated with the towing and storage of a vehicle and load declared out-of-service under subsection (c)(2) shall be the responsibility of the motor carrier and not the department or the State of Texas.
(3) All regulations contained in Title 49, Code of Federal Regulations, Parts 40, 380, 382, 385, 386, 387, 390 - 393 and 395 - 397, and all interpretations thereto pertaining to interstate drivers and vehicles are also adopted except as otherwise excluded.
(4) A medical examination certificate, issued in accordance with Title 49, Code of Federal Regulations, Part 391.41, 391.43, and 391.45, shall expire on the date indicated by the medical examiner; however, no such medical examination certificate shall be valid for more than two years from the date of issuance.
(5) [(4)] Nothing in this section
shall be construed to prohibit an employer from requiring and enforcing
more stringent requirements relating to safety of operation and employee
health and safety.
§4.13.Authority to Enforce, Training and Certificate Requirements.
(a) Authority to Enforce.
(1) An officer of the department may stop, enter or detain on a highway or at a port of entry a motor vehicle that is subject to Texas Transportation Code, Chapter 644.
(2) A non-commissioned employee of the department that
is trained and certified to enforce the federal safety regulations
may stop, enter or detain at a
commercial motor vehicle inspection site [
fixed-site facility], or at a port of entry,
a motor vehicle that is subject to Texas Transportation Code, Chapter 644.
(3) An officer of the department or a non-commissioned employee of the department that is trained and certified to enforce the federal safety regulations may prohibit the further operation of a vehicle on a highway or at a port of entry if the vehicle or operator of the vehicle is in violation of Texas Transportation Code, Chapter 522, or a federal safety regulation or rule adopted under Texas Transportation Code, Chapter 644, by declaring the vehicle or operator out-of-service using the North American Standard Out-of-Service Criteria as a guideline.
(4) Municipal police officers from any of the following Texas cities meeting the training and certification requirements contained in subsection (b) of this section and certified by the department may stop, enter or detain on a highway or at a port of entry within the municipality a motor vehicle subject to Texas Transportation Code, Chapter 644:
(A) a municipality with a population of 50,000 or more;
(B) a municipality with a population of 25,000 or more, any part of which is located in a county with a population of 500,000 or more;
(C) a municipality any part of which is located in a county bordering the United Mexican States;
(D) a municipality with a population of less than 25,000, any part of which is located in a county with a population of 2.4 million and that contains or is adjacent to an international port;
(E) a municipality with a population of less than 5,000 that is located adjacent to a bay connected to the Gulf of Mexico and in a county adjacent to a county with a population greater than 3.3 million;
(F) a municipality with a population of 60,000 or more any part of which is located in a county with a population of 750,000 or more and in two or more counties with a combined population of one million or more; or
(G) a municipality with a population of at least 34,000 that is located in a county that borders two or more states.
(5) A sheriff, or deputy sheriff from any of the following Texas counties meeting the training and certification requirements contained in subsection (b) of this section and certified by the department, may stop, enter or detain on a highway or at a port of entry within the county a motor vehicle subject to Texas Transportation Code, Chapter 644:
(A) a county bordering the United Mexican States, or
(B) a county with a population of 2.2 million or more.
(6) A constable, or deputy constable, designated under Texas Transportation Code, §621.4015, meeting the training and certification requirements contained in subsection (b) of this section and certified by the department, may stop, enter or detain on a highway within the county a motor vehicle subject to Texas Transportation Code, Chapter 644.
(7) A certified peace officer from an authorized municipality or county may prohibit the further operation of a vehicle on a highway or at a port of entry within the municipality or county if the vehicle or operator of the vehicle is in violation of Texas Transportation Code, Chapter 522, or a federal safety regulation or rule adopted under Texas Transportation Code, Chapter 644, by declaring the vehicle or operator out-of-service using the North American Standard Out-of-Service Criteria as a guideline.
(b) Training and Certification Requirements.
(1) Minimum standards. Certain peace officers from the municipalities and counties specified in subsection (a) of this section before being certified to enforce this article must meet the following standards:
(A) successfully complete the North American Standard Roadside Inspection Course;
(B) successfully complete the Texas Intrastate Roadside Inspection Course (Part C), if initial certification occurs on or after January 1, 2006, or if recertification is required under subsection (c)(4) of this section; and
(C) participate in an on-the-job training program following the North American Standard Roadside Inspection Course with a certified officer and perform a minimum of 32 level I inspections. These inspections should be completed as soon as practicable, but no later than six months after course completion.
(2) Hazardous materials. Certain peace officers from the municipalities and counties specified in subsection (a) of this section and eligible to enforce the Hazardous Materials Regulations must:
(A) successfully complete the North American Standard Roadside Inspection Course;
(B) successfully complete the Hazardous Materials Inspection Course; and
(C) participate in an on-the-job training program following this course with a certified officer and perform a minimum of 16 level I inspections on vehicles containing non-bulk quantities of hazardous materials. These inspections should be completed as soon as practicable, but no later than six months after course completion.
(3) Cargo Tank Specification. Certain peace officers from the municipalities and counties specified in subsection (a) of this section and eligible to enforce the Cargo Tank Specification requirements must:
(A) successfully complete the North American Standard Roadside Inspection Course;
(B) successfully complete the Hazardous Materials Inspection Course;
(C) successfully complete the Cargo Tank Inspection Course; and
(D) participate in an on-the-job training program following this course with a certified officer and perform a minimum of 16 level I inspections on vehicles transporting hazardous materials in cargo tanks. These inspections should be completed as soon as practicable, but no later than six months after course completion.
(4) Other Bulk Packaging. Certain peace officers from the municipalities and counties specified in subsection (a) of this section and eligible to enforce the Other Bulk Packaging requirements must:
(A) successfully complete the North American Standard Roadside Inspection Course;
(B) successfully complete the Hazardous Materials Inspection Course;
(C) successfully complete the Cargo Tank Inspection Course; and
(D) successfully complete the Other Bulk Packaging Course.
(5) Passenger Vehicle. Certain peace officers from the municipalities and counties specified in subsection (a) of this section and eligible to enforce the passenger vehicle requirements must:
(A) successfully complete the North American Standard Roadside Inspection Course;
(B) successfully complete the Passenger Vehicle Inspection Course; and
(C) participate in an on-the-job training program following this course with a certified officer and perform a minimum of 8 level I or V inspections on passenger vehicles such as motor coaches/buses. These inspections should be completed as soon as practicable, but no later than six months after course completion.
(6) Training provided by the department. When the training is provided by the Texas Department of Public Safety, the department shall collect fees in an amount sufficient to recover from municipalities and counties the cost of certifying its peace officers. The fees shall include:
(A) the per diem costs of the instructors established in accordance with the Appropriations Act regarding in-state travel;
(B) the travel costs of the instructors to and from the training site;
(C) all course fees charged to the department;
(D) all costs of supplies; and
(E) the cost of the training facility, if applicable.
(7) Training provided by other training entities. A public or private entity desiring to train police officers in the enforcement of the Federal Motor Carrier Safety Regulations must:
(A) submit a schedule of the courses to be instructed;
(B) submit an outline of the subject matter in each course;
(C) submit a list of the instructors and their qualifications to be used in the training course;
(D) submit a copy of the examination;
(E) submit an estimate of the cost of the course;
(F) receive approval from the director prior to providing the training course;
(G) provide a list of all peace officers attending the training course, including the peace officer's name, rank, agency, social security number, dates of the course, and the examination score; and
(H) receive from each peace officer, municipality, or county the cost of providing the training course(s).
(c) Maintaining Certification.
(1) To maintain certification to conduct inspections and enforce the federal safety regulations, a peace officer must:
(A) Successfully complete the required annual certification training; and
(B) Perform a minimum of 32 Level I inspections per calendar year.
(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, the officer can use Level I inspections performed on vehicles transporting hazardous materials in other bulk packaging to satisfy the 32 Level I inspections required by subparagraph (B) of this paragraph. Level I, II or V inspections on vehicles transporting hazardous materials in other bulk packaging may also be used to satisfy the eight inspections required by subparagraph (D) of this paragraph.
(F) If the officer is certified to perform passenger vehicle inspections, at least eight 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) In the event an officer does not meet the requirements of subsection (c) of this section, his or her certification shall be suspended by the department. Such suspension action will be initiated by the director or the director's designee.
(3) To be recertified, after suspension, an officer shall pass the applicable examinations which may include the North American Standard Roadside Inspection, the Hazardous Materials Inspection Course, the Cargo Tank Inspection Course, the Other Bulk Packaging Inspection Course, and/or the Passenger Vehicle Inspection Course and repeat the specified number of inspections with a certified officer.
(4) Any officer failing any examination, or failing to successfully demonstrate proficiency in conducting inspections after allowing any certification to lapse will be required to repeat the entire training process as outlined in subsection (b) of this section.
§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) executes a Memorandum of Understanding with the department concerning the working policies and procedures of the inspection program whereby the resources of all agencies will be maximized, duplication of efforts will be minimized, and uniformity in the inspection program will be maintained;
(2) implements a program that ensures only their certified officers are conducting the inspections, utilizing only department approved forms, and following the inspection program guidelines approved by the department;
(3) implements a program that ensures their officers perform the required number of inspections annually and successfully complete the required annual certification training to maintain the officers' certification;
(4) agrees to immediately suspend, from performing commercial vehicle inspection and enforcement activities, authorized in this chapter, any officer that fails to maintain their certification or that fails to perform the inspections following the guidelines approved by the department;
(5) agrees to notify the department within 10 days of a change in an officer's certification and provides a list to the department by January 31st of each year of the officers that have been suspended and are no longer certified;
(6) provides all roadside inspection data to the department
through electronic systems that are compatible with the department's
system within 10 [15 business] days of the inspection,
and forwards paper copies immediately thereafter;
(7) agrees to forward crash reports involving commercial
motor vehicles to the department no later than 10 [
30]
days after the date of completion of the crash investigation; [
and]
(8) agrees to investigate and determine whether a correction
to the data needs to be made when that data is challenged; to notify
the motor carrier and the department in writing of the results of
the investigation within 10 [working] days; and then to
make any needed corrections and forward the corrected reports to the
department immediately; and [.]
(9) acknowledges that the department may conduct random in-person observation of inspections conducted in order to ensure that the officers maintain practical proficiency in the commercial vehicle inspection program.
(b) Non-compliance [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) The failure of a municipality or county to show activity to the department within a six (6) month period will constitute grounds to decertify the municipality or county.
(d) Each municipality or county that has peace officers trained and certified to enforce the federal safety regulations shall be required to update and renew their Memorandum of Understanding with the department every two years on a staggered schedule to be determined by the department. If the initial Memorandum of Understanding with the department does not have an effective date shown, then the effective date shall be the date of acceptance by the department.
(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) Definitions specific to the Safety Audit Program are as follows:
(A) Compliance Review means an on-site examination of motor carrier operations to determine whether a motor carrier meets the safety fitness standard.
(B) Culpability means an evaluation of the blame worthiness of the violator's conduct or actions.
(C) Imminent Hazard means any condition of vehicle, employees, or commercial vehicle operations which is likely to result in serious injury or death if not discontinued immediately.
(D) Satisfactory Safety Rating means that 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, Part 385.5 and the state equivalents contained in Texas Transportation Code Chapters 522 and 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.
(E) Conditional Safety Rating means 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, Part 385.5(a) through (k) and the state equivalents contained in Texas Transportation Code Chapters 522 and 644, and 37 TAC, Chapter 4.
(F) Unsatisfactory Safety Rating means 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 Chapters 522 and 644, and 37 TAC, Chapter 4.
(G) For the purposes of safety ratings, Final Departmental Decision is defined as:
(i) the letter notifying the carrier of a satisfactory safety rating, issued under paragraph (4)(D) of this subsection;
(ii) the letter notifying the motor carrier of a conditional safety rating on the expiration of the time period in paragraph (4)(D)(ii) of this subsection, unless this changed earlier as a result of the department granting a request to change the safety rating or a departmental review;
(iii) the letter notifying the motor carrier of a final unsatisfactory safety rating issued under paragraph (4)(D)(iii) of this subsection; or
(iv) 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.
(2) Inspection of Premises.
(A) Authority to Inspect. 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) Entry of Premises. 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.
(3) Compliance Review Audits. A Compliance Review will be conducted based upon the following criteria:
(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, Parts 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).
(4) 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, Part 385.7. The following safety ratings 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, Part 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 61st calendar day after notice of the proposed unsatisfactory safety rating; all other intrastate motor carriers are prohibited from operation on the 76th 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 by 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 61st 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 76th 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 [
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. Within 5 business days of the expiration of
the time periods set out in paragraph (4)(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, Part 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 [
that records the receipt of the notice by the person responsible].
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, Part 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) Change to Safety Rating based on Corrective Actions. 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 Parts 385.5 and 385.7, and equivalent state regulations contained in Texas Transportation Code Chapters 522 and 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 [streamlined] compliance
review and any additional relevant information. The review will be
conducted by the director's designee(s); the follow-up [
streamlined
] 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 [or final
] "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 6 months or less, the timeline in paragraph (a)(4)(G)(iii) of this subsection 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 paragraph (a)(4)(G)(iii) of this subsection is no longer applicable.
(v) [(iv)] The filing of a request
for a change to a proposed or final safety rating under this section
does not stay the 60 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 60 calendar day period, the period before the proposed
safety rating becomes final may be extended for up to 30 [10
] calendar days at the discretion of the department.
(vi) [(v)] 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 75 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 76th day after the date
of the notice of the proposed "unsatisfactory" rating.
(vii) [(vi)] 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 Parts
385.5 and 385.7, and equivalent state regulations contained in Texas
Transportation Code Chapters 522 and 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) [(vii)] 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
Parts 385.5 and 385.7, and equivalent state regulations contained
in Texas Transportation Code Chapters 522 and 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 (4)(G)(iv) or (v) of this subsection will
expire upon receipt of this notice.
(ix) [(viii)] 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 (4)(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) Departmental Review of Safety Rating. 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, Part 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, Part 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 (4)(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 (4)(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.
(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).
(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 (a)(4)(D)(iii) of this section.
(c) 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.
§4.17.Notification and Hearing Processes.
(a) Notification.
(1) The department will notify a motor carrier of an enforcement action by the issuance of a claim letter as described in §4.16(a)(4) of this title (relating to Administrative Penalties, Payments, Collection and Settlement of Penalties).
(2) The notification may be submitted to the motor carrier's last known address as reflected in the records of the department by certified mail, return receipt requested, or personal service, or another manner of delivery that records the receipt of the notice by the person responsible. Electronic mail may be used provided the department verifies receipt by the person responsible. A notification sent by mail shall be presumed to have been received by the motor carrier five days after the date of the mailing.
(3) The motor carrier shall respond within 20 calendar [
business] days of receipt of the claim letter with
one of the following options:
(A) Payment of the claim in the full amount as outlined in the claim letter; or
(B) Request, in writing, to make installment payments; or
(C) Request, in writing, an informal hearing; or
(D) Request, in writing, an administrative hearing.
(4) A request under paragraph (3)(C) or (D) of this subsection must contain the following:
(A) A concise statement of the issues to be presented at the hearing, including the occurrence of the violations, the amount of the penalty, or both;
(B) defenses the carrier asserts to the department's claim; and
(C) supporting documents to show defenses and/or financial condition of the carrier.
(5) A request under paragraph (3)(C) of this subsection that does not contain the information required in paragraph (4) of this subsection may, after notice and a reasonable opportunity to correct the defect, be set for an administrative hearing rather than an informal hearing, at the discretion of the department.
(b) Informal hearing.
(1) If requested, the department will hold an informal hearing to discuss a penalty recommended under this section. Such hearing will be scheduled and conducted by the manager of the Motor Carrier Bureau or the director's designee.
(2) An informal hearing shall not be subject to rules of evidence and civil procedure except to the extent necessary for the orderly conduct of the hearing. The department will summarize the nature of the violation and the penalty, and discuss the factual basis for such. The motor carrier will be afforded an opportunity to respond to the allegations verbally and/or in writing.
(3) After the conclusion of the informal hearing, the hearing officer will issue a Memorandum of Decision, which will be provided to the motor carrier. The Memorandum of Decision will contain the following:
(A) a statement of findings by the hearing officer, including a statement of dismissal of charges, modification of penalties, or affirmation of penalties; and
(B) if the penalties are modified or affirmed, the
Memorandum of Decision will be accompanied by a revised claim letter
requiring the motor carrier to respond within 20
calendar [business
] days of receipt of claim letter with one of the following
options:
(i) Payment of the claim in the full amount as outlined in the claim letter; or
(ii) Request to make installment payments; or
(iii) Request an administrative hearing before the State Office of Administrative Hearings.
(c) Administrative Hearing.
(1) If the motor carrier requests an administrative hearing, as required by subsection (a)(3)(D) or (b)(3)(B)(iii) of this section, the department shall request an administrative hearing before the State Office of Administrative Hearings. The department will provide written notice by certified mail, return receipt requested, or by personal service of such action to the motor carrier. The administrative law judge for the State Office of Administrative Hearings shall issue a proposal for decision setting out the judge's findings of fact, conclusions of law and recommendations in accordance with agency rules and statutes, including a recommendation regarding the award and amount of costs, fees, expenses, and reasonable and necessary attorney's fees incurred by the state.
(2) The director may adopt those findings and make it part of the director's order; or the director may, pursuant to §2001.058(e), Government Code, increase or decrease the amount of the penalty recommended by the administrative law judge. Notice of the director's order and proposal for decision shall be given to the affected person as required by Chapter 2001, Government Code, and must include a statement that the person is entitled to seek a judicial review of the order. Before the 31st calendar day after the date the director's order becomes final as provided in §2001.004, Government Code, the person must:
(A) pay the penalty in full;
(B) pay the penalty in full and file a petition for judicial review contesting:
(i) the occurrence of the violation(s);
(ii) the amount of the penalty; or
(iii) both the occurrence of the violation(s) and the amount of the penalty.
(C) without paying the penalty, file a petition for review contesting:
(i) the occurrence of the violation(s);
(ii) the amount of the penalty; or
(iii) both the occurrence of the violation(s) and the amount of the penalty.
(3) A contested case under this subsection will be governed by Texas Government Code, Chapter 2001, subchapters C and D, Texas Transportation Code, §644.153, and 37 TAC, Chapter 29 of this title (relating to General Rules of Practice and Procedure), and not by Title 49, Code of Federal Regulations, Part 386, Subparts D and E.
(d) A final department decision is subject to judicial review under the substantial evidence rule, Texas Government Code, §2001.174. For purposes of collection of the administrative penalty, Final Departmental Decision is defined as:
(1) the most recent claim letter issued to a motor
carrier who fails to request an informal hearing or an administrative
hearing within 20 calendar [business] days of
receipt of the Notice of Claim; or
(2) the most recent claim letter issued to a motor carrier who fails to pay or becomes delinquent in the payment of an administrative penalty as outlined in §4.16 of this title (relating to Administrative Penalties, Payment, Collection and Settlement of Penalties); or
(3) a Final Order issued by the director as a result of an administrative hearing as outlined in this subchapter.
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 12, 2008.
TRD-200801402
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: April 27, 2008
For further information, please call: (512) 424-2135
The Texas Department of Public Safety proposes an amendment to Chapter 4, Subchapter C, §4.37, concerning Acceptance of Out-of-State Commercial Vehicle Inspection Certificate. Amendment to §4.37 is necessary in order to remove the State of Arkansas from the list of jurisdictions certified by the Federal Motor Carrier Safety Administration as meeting the requirements of Title 49, Code of Federal Regulations, §396.23.
Oscar Ybarra, Chief of Finance, has determined that for each year of the first five-year period the rule is in effect there will be no fiscal implications for state or local government, or local economies.
Mr. Ybarra also has 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 cost to individuals who are required to comply with the section as proposed. There is no anticipated negative impact on local employment.
In addition, Mr. Ybarra has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule 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.
The Department has determined that this proposal is not a "major environmental rule" as defined by Governmental Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk 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 a 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 Governmental Code does not apply to this rule. Accordingly, the Department is not required to complete a takings impact assessment regarding this rule.
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) 424-7509.
The amendment is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department’s work; and Texas Transportation Code, §548.002, which authorizes the department to adopt rules to administer and enforce the compulsory inspection of vehicles.
Texas Government Code, §411.004(3) and Texas Transportation Code, §548.002 are affected by this proposal.
§4.37.Acceptance of Out-of-State Commercial Vehicle Inspection Certificate.
(a) Texas-registered commercial vehicles. Acceptance of commercial vehicle inspection certificates issued outside of Texas. A valid commercial vehicle inspection certificate issued in a jurisdiction having an inspection program that has been certified by the Federal Motor Carrier Safety Administration under the provisions of Title 49, Code of Federal Regulations, §396.23(b)(1) as meeting the requirements of §396.17 is acceptable on a Texas-registered commercial vehicle.
(b) Out-of-state registered commercial vehicles. Commercial vehicles required to be registered in Texas will be required to be inspected at an official commercial vehicle inspection station and obtain a vehicle identification certificate, Form VI-30-A, before the registration process can be completed. Valid out-of-state inspection certificates will not be honored on commercial vehicles required to be registered.
(c) Jurisdictions certified under the provisions of
Title 49, Code of Federal Regulations, §396.23(b)(1). The following
jurisdictions have been certified by the Federal Motor Carrier Safety
Administration as meeting the requirements of Title 49, Code of Federal
Regulations, §396.23(b)(1): Alabama (LPG Board), [
Arkansas,]
California, Connecticut, District of Columbia, Hawaii, Illinois, Louisiana,
Maine, Maryland, Michigan, Minnesota, New Hampshire, New Jersey, New
York, Ohio (Bus Inspection Program), Oklahoma, Pennsylvania, Rhode
Island, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin,
or any of the ten Canadian Provinces and the Yukon Territory.
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 17, 2008.
TRD-200801470
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: April 27, 2008
For further information, please call: (512) 424-2135