Section 4.16 - Administrative Penalties, Payment, Collection, and Settlement of Penalties(a) Administrative Penalties. (1) The compliance review may result in the initiation of an enforcement action based upon the number and degree of seriousness of the violations discovered during the review as well as those factors listed in Title 49, Code of Federal Regulations, Part 385.7. As a result of the enforcement action, the department may impose an administrative penalty against a motor carrier who violates a provision of the Texas Transportation Code, Title 7, Subtitle B, Chapter 522 (relating to Commercial Driver's License), Subtitle C, Chapters 541 - 600 (relating to the Rules of the Road), and Subtitle F, Chapter 644 (relating to Commercial Motor Vehicles), including any amendments not codified in the Texas Transportation Code. Each of these provisions relates to the safe operation of a commercial motor vehicle under Texas Transportation Code, § 644.153(b).(2) The department shall have discretion in determining the appropriate amount of the administrative penalty assessed for each violation, and adopts the Federal Uniform Fine Assessment Program as a method of determining penalty assessment. A penalty under this section may not exceed the maximum penalty provided for a violation of a similar federal safety regulation. The department retains the authority to reduce the administrative penalty calculated by the Federal Uniform Fine Assessment Program when the interests of justice require it.(3) For motor carriers whose verified annual gross revenue is less than one million dollars, the department will assess an alternative administrative penalty according to the schedule listed in the figure, if the alternative administrative penalty would be less than the amount calculated by the Federal Uniform Fine Assessment Program. Attached Graphic
(A) General motor carriers may be assessed an alternative administrative penalty, as listed in Table 1, that is the following percentage of their gross revenue.(B) Passenger or hazardous materials motor carriers may be assessed an alternative administrative penalty, as listed in Table 2, that is the following percentage of their gross revenue(4) Under certain circumstances, the department may deviate from the Federal Uniform Fine Assessment Program and instead issue up to the maximum penalty provided. These circumstances include, but are not limited to, the following: (A) A motor carrier who does not provide credible information about the size of its operations (revenue, fleet mileage, number of trucks, and number of drivers), may be subject to maximum penalties under federal law for violations cited.(B) A carrier which has been penalized (Notice of Claim issued) twice in the previous two years or three times in the previous six years for a given violation may be subject to maximum penalties for a current violation of the same section. Any prior violations used in accordance with this paragraph which are overturned on appeal before a current penalty becomes a "final agency decision" will result in reconsideration, and recalculation if applicable, of the current penalty amount.(5) In no case will any penalty or group of penalties assessed according to this section be less than a total of $500.(6) The department will send a Notice of Claim to the person(s), Firm, or business in violation of this subchapter by certified mail, return receipt requested, by personal service, or another manner of delivery that records the receipt of the notice by the person responsible requiring a response within 20 business days. The notice will contain the following language in bold, large face type: "FAILURE TO PAY THIS CLAIM OR RESPOND, AS SPECIFIED IN THE NOTICE OF CLAIM, WITHIN 20 BUSINESS DAYS WILL RESULT IN THIS NOTICE OF CLAIM BEING DEEMED A 'FINAL DEPARTMENT DECISION.' A PERSON WHO IS SUBJECT TO AN ADMINISTRATIVE PENALTY IMPOSED BY THE DEPARTMENT UNDER TEXAS TRANSPORTATION CODE, § 644.153 IS REQUIRED TO PAY THE ADMINISTRATIVE PENALTIES OR RESPOND TO THE DEPARTMENT'S NOTICE OF CLAIM. A PERSON WHO FAILS TO PAY, OR BECOMES DELINQUENT IN THE PAYMENT OF THE ADMINISTRATIVE PENALTIES IMPOSED BY THE DEPARTMENT UNDER TEXAS TRANSPORTATION CODE, § 644.153 SHALL NOT OPERATE OR DIRECT THE OPERATION OF A COMMERCIAL MOTOR VEHICLE ON THE HIGHWAYS OF THIS STATE UNTIL SUCH TIME AS THE ADMINISTRATIVE PENALTIES HAVE BEEN REMITTED TO THE DEPARTMENT."(b) Payment, Collection and Settlement of Administrative Penalty. (1) Payment. A person who is subject to an administrative penalty imposed by the department as authorized by Texas Transportation Code, § 644.153(c) is required to pay the administrative penalty. If payment of costs, fees, expenses, and reasonable and necessary attorney's fees incurred by the state has been ordered, any payment of less than the full amount owed will be applied first to the costs, fees, expenses and attorney's fees, then the balance of the payment, if any, will be applied to the administrative penalty. The administrative penalty may be paid through one of the following options: (A) Full Payment. Full payment of the administrative penalty in the form of a check, cashier's check, or money order made payable to the Department of Public Safety shall be submitted to the Texas Department of Public Safety, Attn: Motor Carrier Bureau, MSC 0522, 6200 Guadalupe, Building P, Austin, Texas 78752-4019. The department may allow payments to be made by electronic funds transfer or valid credit card issued by a financial institution chartered by a state or the federal government or by a nationally recognized credit organization approved by the department. (i) The department may assess a discount, convenience, or service charge for a payment transaction for electronic funds transfers or credit card payments in an amount that will cover the direct costs to the department for accepting that payment.(ii) The department may assess a service charge of $30 for a payment transaction that is dishonored or refused for lack of funds or insufficient funds.(iii) Any charge added to an administrative penalty under paragraph (1)(A)(i) and (1)(A)(ii) of this subsection must be paid in full, along with the administrative penalty. The department's remedies, including issuing and continuing an impoundment order, apply to the charges as well as the administrative penalty.(B) Installment Payments. (i) A person(s), firm, or business may, upon approval of the director or the director's designee, be allowed to make installment payments of an administrative penalty, costs, fees, expenses, and reasonable and necessary attorney's fees incurred by the state upon submission of adequate proof of inability to pay the full amount of the claim. An application shall be submitted on a form approved by the department.(ii) The person(s), firm, or business requesting the installment agreement must submit adequate documentation to support the request and make all relevant financial records of the person(s), firm, or business available to the department for inspection and verification.(iii) In the event of a default of the installment agreement by the person(s), firm, or business, then the remaining balance of the installment agreement will be due immediately.(iv) Upon default under an installment agreement, or failure to respond to the notice of claim within 20 business days, the person(s), firm, or business is no longer eligible for installment payments.(v) Installment payments will be in the form, and subject to service charges, described in paragraph (1)(A) of this subsection.(2) Non-Payment of Administrative Penalty. A person who fails to pay, reverses an electronic funds transfer payment or credit card payment, or otherwise becomes delinquent in the payment of the administrative penalty imposed by the department as authorized by Texas Transportation Code, § 644.153(c) shall not operate or direct the operation of a commercial motor vehicle on the highways of this state until such time as the administrative penalty has been remitted to the department. The department will make every effort to collect an administrative penalty once an enforcement action has been deemed as a Final Departmental Decision, including referring the administrative penalty to the Office of the Attorney General, or issuing an Impoundment Order. (A) Issuance of an Impoundment Order. Pursuant to Texas Transportation Code, § 644.153(o) - (s), the department will issue an Impoundment Order for the impoundment of any commercial motor vehicle that is operated or directed by the person(s), firm, or business that fails to pay an administrative penalty issued under this subchapter.(B) Timing and Content of Impoundment Order. The department shall issue an Impoundment Order if the person(s), firm, or business fails to respond as specified to the Notice of Claim within 20 business days, or becomes delinquent in the payment of the full amount under subsection (b)(1)(A) of this section or any installment payments under subsection (b)(1)(B) of this section when they become due. The Impoundment Order will contain the following information: (i) Motor Carrier's name, address, city, zip code and telephone number;(ii) The motor carrier's Texas Department of Motor Vehicles, United States Department of Transportation, or Motor Carrier number, if any;(iii) The amount of delinquent penalty assessment;(iv) The date the Impoundment Order was issued;(v) A contact number for the Motor Carrier Bureau;(vi) Notice that the Impoundment Order will be lifted upon receipt of full payment of the administrative penalty as described in paragraph (5) of this subsection; and,(vii) In bold, conspicuous letters, notice that the carrier is responsible for all costs of storage of the vehicle and its cargo, and towing.(3) Prior to impounding any vehicle, the trooper shall verify the Impoundment Order is still valid. Verification can only be made by the Manager of the Motor Carrier Bureau or the Manager's designee during regular business hours, or via electronic inquiry into the Motor Carrier Bureau's Vehicle Impoundment Database after regular business hours. If a trooper is unable to verify the Impoundment Order is in force, then the vehicle shall not be impounded.(4) Once a vehicle is impounded, the trooper impounding the vehicle shall immediately ensure the motor carrier is notified of impoundment of the vehicle. The trooper will inform the motor carrier of the name, location, and telephone number of the vehicle storage facility where the vehicle is impounded, notice the vehicle will not be released until the administrative penalty has been paid, and a contact number for the Motor Carrier Bureau. When a vehicle is impounded after regular business hours, the trooper will notify the Motor Carrier Bureau as soon as possible but not later than the next regular business day.(5) Release of Impoundment Order and Impounded Vehicles. (A) To cancel the Impoundment Order and to release a vehicle from impoundment, the motor carrier shall pay the administrative penalty in full, including costs, fees, expenses, and reasonable and necessary attorney's fees incurred by the state.(B) The payment of the administrative penalty must be for the full amount. The payment must be made by cashier's check or money order payable to the Texas Department of Public Safety.(C) The payment can be made in one of two ways only: (i) by sending it to the following address as indicated: Texas Department of Public Safety, Motor Carrier Bureau, MSC 0522, 6200 Guadalupe, Bldg. P, Austin, Texas 78752-4019, Attn: Accounting Clerk, Impoundment Notice; or(ii) directly to the trooper at the time of the actual impoundment or to any Commercial Vehicle Enforcement employee at any department regional, district or sub-district office. If payment is made on an impounded vehicle after regular business hours, the trooper will notify the Motor Carrier Bureau as soon as possible but not later than the next regular business day.(D) The impounded vehicle will be released and the impoundment order will be cancelled only upon receipt of payment as specified under paragraph (5)(C)(i) or (ii) of this subsection.37 Tex. Admin. Code § 4.16
The provisions of this §4.16 adopted to be effective March 9, 2004, 29 TexReg 2376; amended to be effective January 4, 2005, 29 TexReg 12235; amended to be effective May 22, 2005, 30 TexReg 3031; amended to be effective September 22, 2005, 30 TexReg 6065; amended to be effective January 24, 2006, 31 TexReg 404; amended to be effective April 30, 2007, 32 TexReg 2370; amended to be effective February 25, 2010, 35 TexReg 1470