Subchapter B. REGULATIONS GOVERNING TRANSPORTATION SAFETY
37 TAC §§4.11, 4.12, 4.15, 4.21
The Texas Department of Public Safety proposes amendments to Chapter 4, Subchapter B, §§4.11, 4.12, 4.15 and 4.21 concerning Regulations Governing Transportation Safety.
The amendment to §4.11 updates the rule so that it reflects June 1, 2007 in subsection (a). The amendment is necessary in order 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.
Amendment to §4.12 is necessary in order to add clarification to subsection (a)(2) of when split sleeper berth time can be used by drivers operating commercial vehicles in intrastate commerce.
Amendment to §4.15 adds a new paragraph (4) to subsection (b) and is necessary in order to clarify the department's enforcement options if a motor carrier's operations pose an imminent hazard.
Amendment to §4.21 reformats the section and is necessary in order to provide that valid positive test results and releases may be made via electronic mail, when the identity of the requestor and the security of the communication have been properly verified. A second amendment to §4.21 is necessary in order to provide that requesters who obtain permission to request and receive release of valid positive test results via electronic mail under the first amendment proposed may also submit reports via electronic mail.
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 also has 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. There is no adverse economic impact anticipated for individuals, small businesses, or micro-businesses.
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 July 10, 2007, 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, 4.12, 4.15, and 4.21 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 Department of Public Safety, Texas Highway Patrol Division,>
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) 424-5296 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 Department of Public Safety, Texas Highway Patrol Division,
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 June [ March ] 1, 2007. All other references in this subchapter to the Code of Federal Regulations also refer to amendments and interpretations issued through June [ March ] 1, 2007. The rules adopted herein are to ensure that:
(1) - (4) (No change.)
(b) - (c) (No change.)
§4.12.Exemptions and Exceptions.
(a) Exemptions. Exemptions to the adoptions in §4.11 of this title (relating to General Applicability and Definitions) are made pursuant to Texas Transportation Code, §§644.052 - 644.054, and are adopted as follows:
(1) (No change.)
(2) Drivers in intrastate commerce will be permitted to drive 12 hours following eight consecutive hours off duty. Drivers in intrastate commerce may not drive after having been on duty 15 hours, following eight consecutive hours off duty. Drivers in intrastate commerce violating the 12 or 15 hour limits provided in this paragraph shall be placed out-of-service for eight consecutive hours. Drivers of vehicles operating in intrastate commerce shall be permitted to accumulate the equivalent of eight consecutive hours off duty by taking a combination of at least eight consecutive hours off duty and sleeper berth time; or by taking two periods of rest in the sleeper berth, providing:
(A) neither rest period in the sleeper berth is shorter than two hours duration;>
(B) the driving time in the period immediately before and after each rest period in the sleeper berth, when added together, does not exceed 12 hours;
(C) the on duty time in the period immediately before and after each rest period in the sleeper berth, when added together, does not include any driving time after the 15th hour; and
(D) the driver may not return to driving subject to the normal hours of service requirements in this subsection without taking at least 8 consecutive hours off duty, at least 8 consecutive hours in the sleeper berth, or a combination of at least 8 consecutive hours off duty and sleeper berth time.
(3) - (7) (No change.)
(b) (No change.)
§4.15.Safety Audit Program.
(a) (No change.)
(b) Imminent Hazard.
(1) - (3) (No change.)
(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) (No change.)
§4.21.Reports of Valid Positive Results on Alcohol and Drug Tests.
(a) Reporting Requirement. An employer required under the federal safety regulations to conduct alcohol and controlled substance testing of employees shall report to the department a valid positive result on an alcohol or controlled substance test performed as part of the carrier's alcohol and drug testing program or consortium, as defined by Title 49, Code of Federal Regulations, Part 382, on an employee of the carrier who holds a commercial driver license issued under Texas Transportation Code, Chapter 522.
(1) (No change.)
(2) Report Submission Requirements.
(A) The report must be submitted on a form prescribed by the department that is available at the following Internet web site address: http://www.txdps.state.tx.us/forms. All information requested on the form must be completed. The completed form must be mailed to MCS Section Supervisor, Motor Carrier Bureau, Texas Department of Public Safety, 6200 Guadalupe, MSC# 0521,
(B) Any requestor who has obtained permission to request and receive release of information via electronic mail under subsection (b)(2) of this section may also submit reports via electronic mail. The complete report must be filled out in its entirety, and must be clearly scanned with attachments as described in paragraph (2)(A) of this subsection.
(3) - (5) (No change.)
(b) Release of Information. Information regarding Reports of Valid Positive Drug or Alcohol Tests is confidential and only subject to release as provided in Texas Transportation Code, §521.053. A request must be submitted on a form prescribed by the department that is available at the following Internet web site address: http://www.txdps.state.tx.us/forms.
(1) The request form must be mailed to MCS Section Supervisor, Motor Carrier Bureau, Texas Department of Public Safety, 6200 Guadalupe, MSC# 0521,
(2) A requester may apply for and obtain permission to request and receive release of information via electronic mail. Electronic mail addresses are subject to initial and continuing verification by the department. A request must be submitted on a form prescribed by the department that is available at the following Internet web site address: http://www.txdps.state.tx.us/forms. Once a requester has obtained permission to request and receive information via electronic mail, each individual request must still be made with a clearly scanned copy of the form described in subsection (b) of this section and be in compliance with the requirements of Texas Transportation Code, §521.053.
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 June 8, 2007.
TRD-200702347
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: July 22, 2007
For further information, please call: (512) 424-2135