BEFORE THE DEPARTMENT OF TRANSPORTATION
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 18.8.512 and 18.8.902 pertaining to motor carrier services
NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT
TO: All Concerned Persons
1. On April 29, 2013 at 10:00 a.m. the Department of Transportation will hold a public hearing in the commission room of the Montana Department of Transportation, 2701 Prospect Ave., Helena, Montana, to consider the proposed amendment of the above-stated rules.
2. The Department of Transportation will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Transportation no later than 5:00 p.m. on April 22, 2013, to advise us of the nature of the accommodation that you need. Please contact Dan Kiely, Motor Carrier Services, Department of Transportation, P.O. Box 4639, Helena, Montana, 59604-4639; telephone (406) 444-7629; fax (406) 444-9263; TDD 444-7696 or (800) 335-7592; or e-mail firstname.lastname@example.org.
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
18.8.512 HEIGHT (1) through (3) remain the same.
(4) All divisible loads with a height of 14 feet 6 inches or less may be issued either a term or single trip special permit. Divisible loads may not exceed 14 feet 6 inches in height.
(5) All nondivisible loads with a height of 15 feet 6 inches or less may be issued either a term or single trip permit. Any permit must be verified for clearance as per (1) through (3).
(5)(6) Nonreducible Nondivisible loads with a height in excess of 14 15 feet 6 inches will be issued single trip special permits. Nondivisible loads in excess of 17 feet must follow the permit requirements of ARM 18.8.1101.
(6) A(7) Baled or loose hay loads with a height of 15 feet 6 inches or less may be issued a term or single trip special permit may be issued for height of 15 feet or less for baled or loose hay. Hay loads must not exceed 15 feet 6 inches except as per (8).
(8) In the event of a hay shortage or emergency drought declaration issued by the state or other governmental authority, the department may issue a single trip special permit for a baled or loose hay load with a height up to 16 feet. The hay load single trip special permit will be issued only for a route identified by the permittee and approved by the department.
(9) The department will enforce administrative penalties for violation of the height permitting requirements as per ARM 18.8.902.
AUTH: 61-10-155, MCA
IMP: 61-10-101, 61-10-103, 61-10-109, 61-10-121, 61-10-122, 61-10-123, 61-10-124, MCA
REASON: The proposed amendments are necessary to clarify the different types of permits which may be issued for different types of overheight loads to avoid confusion for truckers seeking overheight permits. The proposed amendments to (4) will clarify permits for divisible loads. The proposed amendments to (5) and (6) will increase allowable height to 15 feet 6 inches from the current 14 feet 6 inches, as has been requested by the motor carrier industry. The proposed amendment will also add a term permit for nondivisible overheight loads up to 15 feet 6 inches. Currently, loads in this category must obtain a single trip special permit. By allowing carriers to obtain a term permit after verification that no clearance obstructions exist on the route, the department will save resources that are now being spent issuing numerous single trip permits for the same loads on the same routes.
The proposed new (8) is necessary to allow the department to issue single trip special permits for an overheight hay load up to 16 feet in the event of hay shortages or drought-type emergencies. Currently, hay loads may not be permitted up to 16 feet, and in the event of a hay shortage or drought emergency, additional time and resources must be spent on permitting more numerous smaller loads. In the event of a shortage or emergency, the department would be able to accommodate the increased demand for these hay loads by issuance of special trip permits allowing loads up to 16 feet for hay only, and only for the duration of the shortage or emergency.
The proposed new (9) will add a cross reference to ARM 18.8.902 on penalties as a reminder that carriers seeking to avail themselves of the overheight term permit will remain responsible for damages, and be subject to penalties including permit suspensions for failure to comply with load conditions including damage to bridges or other infrastructure.
18.8.902 ADMINISTRATIVE PENALTIES (1)
The Any department motor carrier services official who finds a person operating a vehicle, combination of vehicles, load, object or other thing in violation of the conditions of a special permit may confiscate the permit, issue a notice of violation, and impose administrative penalties. Except as stated in (2) and (3) of this rule, the following administrative penalties will result from the violations of a special permit issued to a permittee:
(a) and (b) remain the same.
(c) Third violation –
30 7-day suspension.
(d) Fourth violation –
60 30-day suspension.
(e) Fifth violation – 90-day suspension.
(f)(e) For violations exceeding the fifth fourth violation, the permittee must apply in writing to the administrator of the motor carrier services division for a new permit.
(2) The department shall confiscate the permit of any permittee who crosses a structure in which speed restrictions are imposed or who does not comply with proper flag vehicle requirements under ARM 18.8.510A and 18.8.511A. The permit shall be suspended for 72 hours.
(3) The department shall impose penalties for overheight loads permitted under ARM 18.8.512 which hit overhead obstructions due to permittee's failure to properly determine necessary clearance or adhere to allowable height requirements. The following penalties shall be imposed:
(a) load higher than permitted – 60-day suspension;
(b) failure to verify height clearance – 30-day suspension.
(2)(4) In addition to the penalties set forth above, in order to protect the safety of the traveling public, permit privileges may be revoked by the administrator of the motor carrier services division for failure by the permittee to comply with any state or federal commercial motor carrier requirements. In making a determination whether to revoke permit privileges under this rule, the administrator shall take into consideration the nature and number of violations by the permittee as well as the need to protect the safety of the traveling public and the protection of personal and public property. The administrator may consider patterns of noncompliance by a carrier permittee and may revoke a carrier's overall permit privileges.
(5) Any permittee who causes damage to a highway or highway structure will be billed for the cost of repairing the damage. The department may withhold issuance of future permits until any financial obligations imposed on a permittee due to the damage are met.
(3)(6) Notice of administrative penalties, suspension, or revocation of permit privileges, or imposition of damages pursuant to this rule shall:
(a) remains the same.
(b) clearly state the reason or reasons for
revocation imposition of penalties or damages;
(c) advise the permittee of the right to appeal the decision to the Montana Transportation Commission as a contested case under ARM 18.8.101 through 18.8.107.
This rule is advisory only but may be a correct interpretation of the law. 61-10-155, MCA ; IMPLIED, 61-10-121, 61-10-122, 61-10-143, MCA;
IMP: 61-10-121, 61-10-122, 61-10-123, 61-10-143, MCA
REASON: The proposed amendments are necessary to clarify the penalties for permit violations which apply to all permits. This rule is cross-referenced in ARM 18.8.512 to serve as notice to all overheight permit applicants that the department has penalties in place and will enforce the penalties, including suspension, as necessary for violations.
The proposed amendment is also necessary to delete the reference to the advisory nature of the rule. The department has full rulemaking authority under 61-10-155, MCA, to adopt rules to implement Title 61, chapter 10, MCA, thus the rule is not adopted under "implied" rulemaking authority, and the "advisory" designation is not appropriate under 2-4-308, MCA.
4. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Dan Kiely, Motor Carrier Services, Department of Transportation, P.O. Box 4639, Helena, Montana, 59604-4639; telephone (406) 444-7629; fax (406) 444-9263; TDD 444-7696 or (800) 335-7592; or e-mail email@example.com and must be received no later than 5:00 p.m., April 29, 2013.
5. Carol Grell Morris, staff attorney, Department of Transportation, has been designated to preside over and conduct this hearing.
6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in #4 above or may be made by completing a request form at any rules hearing held by the department.
7. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.
8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
/s/ Carol Grell Morris /s/ Michael T. Tooley
Carol Grell Morris Michael T. Tooley
Rule Reviewer Director
Department of Transportation
Certified to the Secretary of State March 18, 2013