Proposed Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

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 (the department) proposes amendments to §4.1, concerning Transportation of Hazardous Materials. The proposed amendment updates adoption of the federal hazardous materials regulations as amended through December 1, 2023.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities 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.

Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of this rule is maximum efficiency of the Motor Carrier Safety Assistance Program.

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

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

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does not expand, limit, or repeal an existing regulation. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rule is in effect, the proposed rule should not impact positively or negatively the state's economy.

The Texas Department of Public Safety, in accordance with the Administrative Procedure Act, Texas Government Code, Chapter 2001, and Texas Transportation Code, Chapter 644, will hold a public hearing on Monday, May 6, 2024, at 10:00 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 §4.1, concerning Transportation of Hazardous Materials, proposed for adoption under the authority of Texas Transportation Code, §644.051, which provides that the director shall, after notice and a public hearing, adopt rules regulating the safe transportation of hazardous materials and the safe operation of commercial motor vehicles.

Persons interested in attending this hearing are encouraged to submit advance written notice of his or her intent to attend the hearing and to submit a written copy of his or her comments. Correspondence should be addressed to Major Chris Nordloh, 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 Chris Nordloh at (512) 424-2775 at least three working days prior to the hearing so that appropriate arrangements can be made.

Other comments on this proposal may be submitted to Major Chris Nordloh, Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas 78773-0500, (512) 424-2775. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

The amendments are proposed pursuant to Texas Transportation Code, Section 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, Section 644.051 is 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, 179 (Subpart E), and 180, including all interpretations thereto, for commercial vehicles operated in intrastate, interstate, or foreign commerce, as amended through December 1, 2023 [~~September 1, 2022~~]. All other references in this section to the Code of Federal Regulations also refer to amendments and interpretations issued through December 1, 2023 [~~September 1, 2022~~].

(b) Explanations and Exceptions.

(1) Certain terms when used in the federal regulations as adopted in subsection (a) of this section will have the following meanings, unless the context clearly indicates otherwise.

(A) Motor carrier--Has the meaning assigned by Texas Transportation Code, §643.001(6).

(B) Hazardous material shipper--A consignor, consignee, or beneficial owner of a shipment of hazardous materials.

(C) Interstate or foreign commerce--All movements by commercial motor vehicle, both interstate and intrastate, over the streets and highways of this state.

(D) Department--The Texas Department of Public Safety.

(E) Federal Motor Carrier Safety Administration (FMCSA) field administrator--The director of the Texas Department of Public Safety or the designee of the director for vehicles operating in intrastate commerce.

(F) Farm vehicle--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.

(G) Private carrier--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, 179 (Subpart E), 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.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 27, 2024.

TRD-202401290

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: May 12, 2024

For further information, please call: (512) 424-5848

SUBCHAPTER B. REGULATIONS GOVERNING TRANSPORTATION SAFETY

37 TAC §4.15

The Texas Department of Public Safety (the department) proposes amendments to §4.15, concerning Compliance Review and Safety Audit Programs. The proposed amendment adds as an imminent hazard to the public a motor carrier's refusal to submit to an inspection and the practice of employing unqualified drivers with fraudulent foreign commercial driver licenses. It also specifies the documentation and retention requirements for a motor carrier that employs foreign commercial driver license personnel consistent with House Bill 4337, 88th Leg., R.S. (2023).

Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of this rule is enhanced public safety by improving the investigative efficiencies of the Department's Compliance Review and Safety Audit Programs.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does expand an existing regulation. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rule is in effect, the proposed rule should not impact positively or negatively the state's economy.

The Texas Department of Public Safety, in accordance with the Administrative Procedure Act, Texas Government Code, Chapter 2001, and Texas Transportation Code, Chapter 644, will hold a public hearing on Monday, May 6, 2024, at 10:00 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 §4.15, concerning Compliance Review and Safety Audit Programs, 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.

Texas Transportation Code, Sections 644.051 and Section 644.155 are affected by this proposal.

§4.15.Compliance Review and Safety Audit Programs.

(a) The rules in this subsection, as authorized by Texas Transportation Code, §644.155, establish procedures to determine the safety fitness of motor carriers, assign safety ratings, take remedial actions when necessary, assess administrative penalties when required, and prohibit motor carriers receiving a safety rating of "unsatisfactory" from operating a commercial motor vehicle. The department will use compliance reviews to determine the safety fitness of motor carriers and to assign safety ratings. The safety fitness determination will be assessed on intrastate motor carriers and the intrastate operations of interstate motor carriers based in Texas. Safety audits will be used to assess the safety management of interstate motor carriers that are part of the New Entrant Safety Assurance Program under Title 49, Code of Federal Regulation, Part 385, Subpart D. Definitions specific to the compliance review and safety audit programs shall have the following meanings unless the context shall clearly indicate otherwise.

(1) Compliance review--An examination of motor carrier operations to determine whether a motor carrier meets the safety fitness standard.

(2) Culpability--An evaluation of the blame worthiness of the violator's conduct or actions.

(3) Imminent hazard--Any condition of vehicle, employees, or commercial vehicle operations which is likely to result in serious injury or death if not discontinued immediately.

(4) Safety audit--An examination of a motor carrier's operations to provide educational and technical assistance on safety and the operational requirements of the Federal Motor Carrier Safety Regulations [~~FMCSRs~~] and applicable Hazardous Materials Regulations [~~HMRs~~] and to gather critical safety data needed to assess [~~make an assessment of~~] the carrier's safety performance and basic safety management controls. Safety audits do not result in safety ratings.

(5) Satisfactory safety rating--A motor carrier has in place and functioning adequate safety management controls to meet the safety fitness standard prescribed in Title 49, Code of Federal Regulation, §385.5 and the state equivalents contained in Texas Transportation Code, Chapter 522 and Chapter 644, and 37 TAC Chapter 4. Safety management controls are adequate if they are appropriate for the size and type of operation of the particular motor carrier.

(6) Conditional safety rating--A motor carrier does not have adequate safety management controls in place to ensure compliance with the safety fitness standard that could result in the occurrences listed in Title 49, Code of Federal Regulations, §385.5(a) through (k) and the state equivalents contained in Texas Transportation Code, Chapter 522 and Chapter 644, and 37 TAC Chapter 4.

(7) Unsatisfactory safety rating--A motor carrier does not have adequate safety management controls in place to ensure compliance with the safety fitness standard which has resulted in occurrences listed in Title 49, Code of Federal Regulations, Part 385.5(a) through (k) and the state equivalents contained in Texas Transportation Code, Chapter 522 and Chapter 644, and 37 TAC Chapter 4.

(8) For the purposes of safety ratings, Final Departmental Decision is defined as:

(A) the letter notifying the carrier of a satisfactory safety rating, issued under subsection (b)(3)(D) of this section;

(B) the letter notifying the motor carrier of a conditional safety rating on the expiration of the time period in subsection (b)(3)(D)(ii) of this section, unless this changed earlier as a result of the department granting a request to change the safety rating or a departmental review;

(C) the letter notifying the motor carrier of a final unsatisfactory safety rating issued under subsection (b)(3)(D)(iii) of this section; or

(D) the letter notifying the motor carrier of a decision on a safety rating as a result of a request for a change of the safety rating or a departmental review.

(b) Compliance Reviews.

(1) Inspection of Premises.

(A) An officer or a non-commissioned employee of the department who has been certified by the director may enter a motor carrier's premises to inspect lands, buildings, and equipment and copy or verify the correctness of any records, reports, or other documents required to be kept or made pursuant to the regulations adopted by the director in accordance with Texas Transportation Code, §644.155.

(B) The officer or employee of the department may conduct the inspection:

(i) at a reasonable time;

(ii) on stating the purpose of the inspection; and

(iii) by presenting to the motor carrier:

(I) appropriate credentials; and

(II) a written statement from the department to the motor carrier indicating the officer's or employee's authority to inspect.

(i) A person who does not permit an inspection authorized under Texas Transportation Code, §644.104, is liable to the state for a civil penalty not to exceed $1,000. The director may request that the attorney general sue to collect the penalty in the county in which the violation is alleged to have occurred or in Travis County.

(ii) The civil penalty is in addition to the criminal penalty provided by Texas Transportation Code, §644.151.

(iii) Each day a person refuses to permit an inspection constitutes a separate violation for purposes of imposing a penalty.

(iv) Refusal to permit an inspection under Texas Transportation Code, §644.104 may be treated as an imminent hazard under subsection (d) of this section. The department may issue an order to cease the motor carrier's commercial vehicle operations under subsection (d), which will remain in effect until an inspection is permitted.

(2) A compliance review will be conducted based upon:

(A) unsatisfactory safety assessment factor evaluations;

(B) written complaints concerning unsafe operation of commercial motor vehicles which are substantiated by documentation. Complaints for the purpose of this criterion include involvement in a fatality accident or the receipt of a 24-hour out-of-service notification based on violation(s) of Title 49, Code of Federal Regulations, §392.4 or §392.5 or Texas Transportation Code, §522.101;

(C) follow-up investigations of motor carriers that have been the subject of an enforcement action, an administrative penalty, or the assessment of an unsatisfactory safety rating from the immediately previous compliance review;

(D) requests from the legislature and state or federal agencies;

(E) request for a safety rating determination or a change to a safety rating determination; or

(F) a hazardous material incident as described in §4.1(b)(4) of this title (relating to Transportation of Hazardous Materials).

(3) Safety Fitness Rating.

(A) A safety fitness rating is based on the degree of compliance with the safety fitness standard for motor carriers.

(B) A safety rating will be determined following a compliance review using the factors prescribed in Title 49, Code of Federal Regulations, §385.7. The safety ratings detailed in subparagraph (B)(i) - (iii) of this paragraph will be assigned:

(i) satisfactory safety rating;

(ii) conditional safety rating; or

(iii) unsatisfactory safety rating.

(C) The provisions of Title 49, Code of Federal Regulations, §385.13 relating to "unsatisfactory rated motor carriers; prohibition on transportation; ineligibility for Federal contracts" is hereby adopted by the department and is applicable to intrastate motor carriers except that intrastate motor carriers transporting more than 15 passengers or hazardous materials are prohibited from operation on the 46th calendar day after notice of the proposed unsatisfactory safety rating; all other intrastate motor carriers are prohibited from operation on the 61st calendar day after notice of the proposed unsatisfactory safety rating.

(D) The department will provide written notification to the motor carrier of the assigned safety rating within 30 business days of the close-out date of the compliance review.

(i) Notice of a satisfactory safety rating will be sent by regular U.S. Mail or personal delivery and is final upon receipt or mailing.

(ii) Notice of a proposed conditional safety rating shall be sent by certified mail, registered mail, personal delivery, or another manner of delivery that records the receipt of the notice by the person responsible [,] and will include a list of those items for which immediate corrective action must be taken. Unless changed by the department following a request for a change of safety rating or a department review, the conditional safety rating will become final without further notice on the 46th calendar day after notice of the proposed conditional safety rating for motor carriers transporting more than 15 passengers or hazardous materials requiring placarding under Part 172, Subpart F, of Title 49, Code of Federal Regulations, and on the 61st calendar day after notice of the proposed conditional rating for all other motor carriers. If the motor carrier requests a change of safety rating or a departmental review more than 15 days after the notice of proposed conditional safety rating, the conditional safety rating may become final before the department can complete its review.

(iii) Notice of a proposed unsatisfactory safety rating shall be sent by certified mail, registered mail, personal delivery, or another manner of delivery to the motor carrier's last known location, address, electronic mail address, or facsimile number and will include a list of those items for which immediate corrective action must be taken. Within five (5) business days of the expiration of the time periods set out in paragraph (3)(C) of this subsection, the department will provide written notification of the final unsatisfactory safety rating and an order to cease all intrastate transportation, as provided in Title 49, Code of Federal Regulations, §385.13, by certified mail, registered mail, personal delivery, or another manner of delivery to the motor carrier's last known location, address, electronic mail address, or facsimile number. Electronic mail may be used for safety rating correspondence. If the motor carrier requests a change of safety rating or a departmental review more than 15 days after the notice of proposed unsatisfactory safety rating, the unsatisfactory safety rating may become final before the department can complete its review.

(iv) A final unsatisfactory safety rating and order to cease all intrastate transportation, described in clause (iii) of this subparagraph, will become effective on the date specified in the notice of proposed safety rating unless extended by the department, in writing, under subparagraph (G)(v) or (vi) of this paragraph. The department will make and document reasonable efforts to provide a copy of the written final unsatisfactory safety rating and order to cease intrastate transportation to the carrier. However, if the notice of proposed safety rating was received by the motor carrier and adequately describes the effective date and consequences of failure to improve the motor carrier's safety rating, failure of the department to serve the final unsatisfactory safety rating and order to cease intrastate transportation will not delay its effective date.

(E) In addition to any criminal penalties provided by statute, a motor carrier assessed an unsatisfactory safety rating who continues to operate in violation of the notifications to cease operations under Title 49, Code of Federal Regulations, §385.13 will be subject to a civil suit filed by the attorney general from a request from the director of the Texas Department of Public Safety. Each day of operation constitutes a separate violation.

(F) A request for a change in or a departmental review of a safety rating must be submitted in writing to: Texas Department of Public Safety, Manager-Motor Carrier Bureau, P.O. Box 4087, Austin, Texas 78773-0521. Such request(s) must meet the requirements provided for in this subsection.

(G) A motor carrier that has taken action to correct the deficiencies that resulted in a proposed or final rating of "conditional" or "unsatisfactory" may request a rating change at any time.

(i) The motor carrier must base its request upon evidence that it has taken corrective actions and that its operations currently meet the safety standards and factors specified in Title 49 Code of Federal Regulations, §385.5 and §385.7, and equivalent state regulations contained in Texas Transportation Code, Chapter 522 and Chapter 644, and 37 TAC Chapter 4. The request must include a written description of corrective actions taken, and other documentation the carrier wishes the department to consider.

(ii) The department will make a final determination on the request for change based upon the documentation the motor carrier submits, a follow-up compliance review, and any additional relevant information. The review will be conducted by the director's designee(s); the follow-up compliance review will be conducted by a field compliance review investigator.

(iii) The department will perform reviews of requests made by motor carriers with a proposed "unsatisfactory" or "conditional" safety rating in the following time periods after receipt of the motor carrier's request: within 30 calendar days for motor carriers transporting passengers in commercial motor vehicles or placardable quantities of hazardous materials, or within 45 calendar days for all other motor carriers.

(iv) When a request for a change to a safety rating, based on corrective actions, is filed before a "conditional" or "unsatisfactory" safety rating has been final for six (6) months or less, the timeline in subsection (b)(3)(G)(iii) of this section is applicable for conducting a follow-up compliance review. All other requests for a change to a safety rating will be scheduled on a priority basis; however, the abbreviated timeline for completion as specified in subsection (b)(3)(G)(iii) is no longer applicable.

(v) The filing of a request for a change to a proposed or final safety rating under this section does not stay the 45 calendar day period specified in this subsection for motor carriers transporting passengers or hazardous materials. If the motor carrier has submitted evidence that corrective actions have been taken pursuant to the Federal Motor Carrier Safety Regulations and state regulations and the department cannot make a final determination within the 45 calendar day period, the period before the proposed safety rating becomes final may be extended for up to 30 calendar days at the discretion of the department.

(vi) The department may allow a motor carrier with a proposed rating of "unsatisfactory" (except those transporting passengers in commercial motor vehicles or placardable quantities of hazardous materials) to continue to operate in intrastate commerce for up to 60 calendar days beyond the 60 calendar days specified in the proposed rating, if the department determines that the motor carrier is making a good faith effort to improve its safety status. This additional period would begin on the 61st day after the date of the notice of the proposed "unsatisfactory" rating.

(vii) If the department determines that the motor carrier has taken the corrective actions required and that its operations currently meet the safety standard and factors specified in Title 49, Code of Federal Regulations, §385.5 and §385.7, and equivalent state regulations contained in Texas Transportation Code, Chapter 522 and Chapter 644, and 37 TAC Chapter 4, the department will notify the motor carrier in writing of its upgraded safety rating. An upgraded safety rating is final upon notification.

(viii) If the department determines that the motor carrier has not taken all the corrective actions required, or that its operations still fail to meet the safety standard and factors specified in Title 49, Code of Federal Regulations, §385.5 and §385.7, and equivalent state regulations contained in Texas Transportation Code, Chapter 522 and Chapter 644, and 37 TAC Chapter 4, the department will notify the motor carrier in writing. Any extension of the time period before an unsatisfactory safety rating becomes effective under paragraph (3)(G)(iv) or (v) of this subsection will expire upon receipt of this notice.

(ix) Any motor carrier whose request for change to a safety rating is denied in accordance with this subsection may request a departmental review under the procedures of paragraph (3)(H) of this subsection. The motor carrier must make the request within 90 calendar days of the denial of the request for a rating change. If the proposed rating has become final, it shall remain in effect during the period of any departmental review.

(H) A motor carrier may request the department to conduct a departmental review if it believes the department has committed an error in assigning its proposed safety rating in accordance with Title 49, Code of Federal Regulations, §385.15(c), Texas Transportation Code, Chapter 644, or 37 TAC Chapter 4 or its final safety rating in accordance with Title 49, Code of Federal Regulations, §385.11(b), Texas Transportation Code, Chapter 644, or 37 TAC Chapter 4.

(i) The motor carrier's request must explain the error it believes the department committed in issuing the safety rating. The motor carrier must include a list of all factual and procedural issues in dispute, and any information or documents that support its argument.

(ii) If a motor carrier has received a notice of a proposed conditional or unsatisfactory safety rating, it should submit its request within 15 business days from the date of the notice. This time frame will allow the department to issue a written decision before the safety rating becomes final and any prohibitions outlined in paragraph (3)(C) of this subsection take effect. Failure to request within this 15 business day period may prevent the department from issuing a final decision before such prohibitions take effect.

(iii) The motor carrier must make a request for a departmental review within 90 calendar days of either the proposed or final safety rating issued in accordance with this subsection, or within 90 calendar days after denial of a request for a change in a safety rating in accordance with paragraph (3)(G) of this subsection.

(iv) The department may ask the motor carrier to submit additional data and attend a conference in Austin, Texas to discuss the safety rating. If the motor carrier does not provide the information requested or does not attend the conference, the department may dismiss its request for review. The review will be conducted by the director's designee(s).

(v) The department will notify the motor carrier in writing of its decision following the departmental review. The department will complete the review within 30 calendar days after receiving a request from a hazardous materials or passenger motor carrier that has received a proposed or final "unsatisfactory" or "conditional" safety rating; or within 45 calendar days after receiving a request from any other motor carrier that has received a proposed or final "unsatisfactory" or "conditional" safety rating.

(I) A final safety rating constitutes a final agency decision. Any review of such decision is subject to Texas Government Code, Chapter 2001. Judicial review is subject to the substantial evidence rule under Texas Government Code, §2001.174.

(1) The department may perform safety audits on interstate motor carriers domiciled in Texas that are part of the New Entrant Safety Assurance Program under Title 49, Code of Federal Regulations, Part 385, Subpart D. The department will comply with all requirements of Title 49, Code of Federal Regulations, Part 385, Subpart D when carrying out safety audits.

(2) Safety audits will be conducted by an individual who is certified to conduct new entrant safety audits. Safety audits may be conducted at the carrier's premises or at an off-site location chosen by the department.

(3) Motor carriers that are part of the New Entrant Safety Assurance Program will make records and documents required for a safety audit available for inspection upon the request of an individual certified to perform safety audits.

(A) The department will report to the Federal Motor Carrier Safety Administration any motor carriers who:

(i) fail to respond to attempts by the department to make contact to initiate a safety audit,

(ii) refuse to meet with the department to conduct the safety audit, and/or

(iii) refuse to provide records and documents required for the safety audit.

(B) Motor carriers who do not complete a required safety audit may have their interstate operating authority revoked by the Federal Motor Carrier Safety Administration.

(4) Safety audits will review a motor carrier's safety management systems and practices to determine compliance with federal safety regulations. The safety audit will also be used to educate the motor carrier on safety compliance. The reviewer's findings will be reported to the Federal Motor Carrier Safety Administration. Safety audits will have a pass or fail determination and will not assign a safety rating to a motor carrier.

(5) In the course of a safety audit, if it is discovered that the motor carrier has committed any of the actions listed in Title 49, Code of Federal Regulation, Part 385.308(a), the department may schedule a compliance review to carry out a more thorough examination of the motor carrier's safety management.

(d) Imminent Hazard.

(1) Regardless of whether an unsatisfactory safety rating has become final under subsection (b)(3)(C) of this section, if the manager of the Motor Carrier Bureau or their designee determines that a motor carrier's operations constitute an imminent hazard, the manager or their designee shall issue an order to cease all or part of the motor carrier's commercial motor vehicle operations.

(2) In making any such order, no restrictions shall be imposed on any employee or employer beyond that required to abate the hazard.

(3) Opportunity for review of any such order shall be in the manner described in §4.18 of this title (relating to Intrastate Operating Authority Out-of-Service Review).

(4) For purposes of all enforcement the department is authorized to take, any operations in violation of an imminent hazard determination will be treated as operating with a final unsatisfactory rating issued under subsection (b)(3)(D)(iii) of this section.

(5) The practice of a motor carrier employing unqualified drivers with a fraudulent foreign commercial driver license is an imminent hazard to the public. The manager of the Motor Carrier Bureau or their designee shall issue an order to cease the motor carrier's commercial motor vehicle operations, which will remain in effect until the motor carrier submits proof of corrective action and all current drivers are verified to be properly qualified to operate commercial motor vehicles requiring a commercial driver license. Approval of the submitted corrective action and removal of the order to cease will be made by the manager of the Motor Carrier Bureau or their designee.

(e) Release of Safety Rating Information.

(1) The safety rating assigned to a motor carrier will be made available to the public upon request.

(2) Requests should be addressed to the Texas Department of Public Safety, Motor Carrier Bureau, P.O. Box 4087, Austin, Texas 78773-0521. All requests for disclosure of safety rating must be made in writing and will be processed under the Texas Public Information Act.

(f) Foreign Commercial Driver License Holder Requirements.

(1) Motor carriers that employ drivers who possess a valid foreign jurisdiction commercial driver license (CDL) or commercial driver license permit (CLP) shall retain a legible copy of the following items:

(A) the commercial driver license or commercial driver license permit, front and back if applicable, and

(B) the Work Authorization Card (Work Visa), front and back if applicable.

(2) These documents may be kept in printed or digital format at the motor carrier's principal place of business (PPOB) or where the motor carrier's driver qualification files are maintained.

(3) A motor carrier must maintain the documents specified by this section for the duration of the driver's employment and then for one year after the driver is no longer employed.

(4) A motor carrier must make all records and information in this file available to an officer or non-commissioned employee of the department upon request and as part of any investigation or safety audit within the timeframe specified by the requesting representative.

(5) A motor carrier that employs foreign CDL or CLP drivers who only operate in counties bordering the United Mexican States is not required to adhere to the rules of this section.