38.3.2005 STATUS OF CARRIER -- EFFECT OF LEASE OF POWER EQUIPMENT
(1) Nothing in this rule shall permit the lease of power equipment from an authorized carrier to a noncertified carrier as the same is prohibited by section 69-12-611, MCA.
(2) In this rule, the term "lease" shall mean the lease of power equipment, whether or not including or accompanied by a provision for the services of an operator, and shall include sub-lease, rental agreement, and similar arrangements.
(3) In all cases, a lease shall be considered transportation "for hire" and thereby constitute the lessor a "motor carrier," except as may be otherwise permitted by law or provided herein.
(4) A lease permitted by law not to be transportation "for hire" and thereby constituting any party a "private carrier" shall be bona fide and in good faith, without guise, subterfuge, or have as its sole purpose to avoid or evade regulation.
(5) Unless otherwise required by law in any specific instance, any statute or rule providing that transportation "for hire" or "motor carrier" may arise from a lease shall not be construed to apply to any lease in which the following are observed, exist and are actually exercised:
(a) the lease shall be in writing, signed by the parties and it, or a true copy, shall be carried in the power equipment at all times during the period of the lease;
(b) there shall be no agreements or understandings between the parties pertaining to the lease of power equipment, operator or complete services, except as contained in the lease;
(c) the power equipment leased shall display, in a conspicuous place on both sides of the cab, the identity and adress of the lessee and may also display the same for the lessor;
(d) at all times there shall be carried in the power equipment, bills of lading, waybills, freight bills, manifests, and other papers identifying the lading, all of which shall clearly indicate that the transportation is under the responsibility of the lessee;
(e) the lessor shall relinquish and the lessee shall have and actually exercise the exclusive right and privilege of possession, directing and controlling the equipment and the transportation and all incidents of transportation;
(f) the lessee shall use the equipment in transportation of freight or passengers within the scope of furtherance of the lessee's primary nontransportation business enterprise, or other nonregulated transportation, and for no other purpose;
(g) the lessee shall substantially assume, carry, and bear the characteristic burdens of the transportation business such as expenses for fuel, maintenance, repairs, delays, breakdowns, detours, idle time for the power equipment and operator, and like matters;
(h) the lessee shall obtain and carry personal injury and property damage liability insurance in amounts no less than that required by law for motor carriers;
(i) the lease shall state the terms of compensation, the method by which it is calculated and determined, and must be realistic in covering the true and total lease of power equipment and complete services; and
(j) if the lease includes or is otherwise accompanied by the lessor's providing the services of an operator, the lease shall be for a duration no less than 30 days, during which time the power equipment and driver shall be used for no purpose independent of the lessee's exclusive rights identified in (e) above.
(6) Nothing in this rule shall be construed as limiting a lessor from actually directing, conducting, or performing maintenance or repair of power equipment or obtaining insurance of any type.
(7) Nothing in this rule shall be construed as limiting the terms of a lease, so long as no provision is inconsistent with this rule.
(8) Nothing in this rule shall be construed as relieving the lessor, lessee, or operator of any power equipment from compliance with the statutes and rules pertaining to the operation of motor vehicles.
History: Sec. 69-12-201, MCA; IMP, Secs. 69-12-101, 69-12-106, 69-12-107 and 69-12-201, MCA; NEW, 1990 MAR p. 1263, Eff. 6/29/90.