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| Montana Administrative Register Notice 18-124 | No. 6 03/25/2010 | |
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BEFORE THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On April 25, 2010, the Department of Transportation proposes to adopt and amend 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 15, 2010, to advise us of the nature of the accommodation that you need. Please contact Dan Kiely, Motor Carrier Services, Department of Transportation, PO Box 4639, Helena, Montana, 59604-4639; telephone (406) 444-7629; fax (406) 444-9263; TDD (406) 444-7696 or (800)335-7592; or e-mail dkiely@mt.gov.
3. The rule as proposed to be adopted provides as follows:
NEW RULE I TRANSPORTATION OF HAZARDOUS MATERIALS (1) A commercial motor vehicle or motor carrier subject to regulation by the department under 61-10-154, MCA, shall comply with and the department adopts by reference the following federal regulations of the U.S. Department of Transportation concerning the transportation of hazardous materials. The regulations adopted by reference are 49 CFR part 107, 49 CFR part 171, 49 CFR part 172, 49 CFR part 173, 49 CFR part 177, 49 CFR part 178, and 49 CFR part 180. The regulations adopted may be found in the Code of Federal Regulations, Title 49, chapter I, subchapters B and C, as updated through January 1, 2010. Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.
AUTH: 61-10-155, MCA IMP: 61-10-154, MCA 4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
18.8.202 MOTOR CARRIERS OPERATING INTERSTATE (1) remains the same. (2) (3) By reference, the department (4) By reference, the department (5) The Motor Carrier Services Division shall identify, collect, and maintain the USDOT number and Taxpayer Identification Number (TIN) for the registrant and motor carrier that is responsible for the safe operation of each vehicle being registered as required by the Performance and Registration Information System Management (PRISM) established at 49 CFR §390.19. The Motor Carrier Identification Report (form MCS-150) information which identifies the carrier responsible for safety shall be updated if the last update is more than one year prior to the first day of the registration period. (a) Motor Carrier Services Division shall issue a suspension notice for all vehicles assigned to a motor carrier which have been prohibited by a federal agency from conducting interstate operations. This suspension will remain in effect for those vehicles despite carrier name changes or USDOT number changes until the carrier responsible for the safety of the motor vehicle has come into compliance with the Federal Motor Carrier Safety Administration Act (FMCSA) which determination shall be made by the FMCSA. (b) Motor Carrier Services Division shall determine the safety rating of a motor carrier prior to any registration or permitting. If it is determined the carrier has an unfit or unsatisfactory safety rating, as defined by federal procedures, or a federal out-of-service order has been issued, the registrations or permitting will be denied, suspended, or revoked until the carrier responsible for safety of the motor vehicle has come into compliance with the Federal Motor Carrier Safety Administration Act (FMCSA), which determination shall be made by the FMCSA. (c) Any carrier responsible for the safety of a vehicle, which was not identified as holding an unfit safety rating until after a registration had been issued, is subject to credential revocation and registration and license plates confiscation by any authorized enforcement personnel.
AUTH: 61-3-710, 61-10-155, MCA IMP: 61-3-708, 61-3-711, 61-3-712, 61-3-713, 61-3-714, 61-3-715, 61-3-716, 61-3-717, 61-3-718, 61-3-719, 61-3-720, 61-3-721, 61-3-722, 61-3-723, 61-3-724, 61-3-725, 61-3-726, 61-3-727, 61-3-728, 61-3-729, 61-3-730, 61-3-731, 61-3-732, 61-3-733, MCA
18.8.431 MAXIMUM ALLOWABLE WEIGHT (1) remains the same (2) The maximum allowable gross weight for vehicle combinations hauling divisible loads and operating under the provisions of 23 CFR 658, appendix C, April 1,
AUTH: 61-10-155, MCA IMP: 61-10-107, MCA
18.8.432 MAXIMUM ALLOWABLE WEIGHT ON THE NONINTERSTATE (1) Maximum allowable weights allowed for vehicle combinations hauling divisible loads and operating on applicable noninterstate highways cannot exceed a gross vehicle weight and single, tandem, or tridem axle weights as described in 23 CFR 658, appendix C, April 1, (2) A department weight analysis of the highway infrastructure will determine the maximum gross weight and axle weights allowed on applicable noninterstate. The maximum gross weight and axle weights may be less than those allowed in 23 CFR 658, appendix C, April 1, (3) and (4) remain the same. (5) Permits will be issued for the weights in 23 CFR 658, appendix C, April 1, (6) Sections (1) through (5) apply only to noninterstate highways specified in 61-10-107
AUTH: 61-10-155, MCA IMP: 61-10-107, 61-10-108, 61-10-121, 61-10-125, MCA
18.8.1501 (2) (a) "Commercial motor vehicle (CMV)" means any self-propelled or towed motor vehicle used on a way of this state open to the public to transport passengers or property when the vehicle: (i) has a gross vehicle weight rating, or gross combination weight rating, or gross vehicle weight, or gross combination weight of 26,001 (ii) remains the same. (iii) is designed or used to transport (iv) (b) through (h) remain the same. (i) "Motor carrier" means a person, corporation, or firm transporting goods or passengers by operation of a commercial motor vehicle upon a way of the state open to the public. The term includes duly authorized agents, officers, and representatives, as well as employees of the motor carrier who are responsible for hiring, supervising, training, assigning, or dispatching of drivers and employees concerned with the installation, inspection, and maintenance of motor vehicle equipment or accessories. (j) remains the same
AUTH: IMP: 44-1-1005, 61-10-154,
18.8.1502 FEDERAL MOTOR CARRIER SAFETY RULES AND STATE MODIFICATIONS (1) Any commercial motor vehicle or motor carrier subject to regulation by the department under 61-10-154, MCA, shall comply with and the department adopts by reference the following portions of the Federal Motor Carrier Safety Regulations of the U.S. Department of Transportation, subject to the provisions of (2). The regulations adopted are 49 CFR part 373, 49 CFR part 375, 49 CFR part 377 through 379, 49 CFR part 382, 49 CFR part 385, 49 CFR part 387, 49 CFR parts 390 through 399, and Appendix G to subchapter B of chapter III, Title 49 of the Code of Federal Regulations, as updated through January 1, (2) The federal regulations incorporated by reference are subject to the following modifications: (a) For purposes of part 385 as applied to intrastate carriers, the (i) and (ii) remain the same. (i) The motor carrier is required to mark each vehicle subject to these regulations with the assigned "USDOT (e) and (f) remain the same, but are renumbered (d) and (e).
AUTH: IMP: 44-1-1005, 61-10-141
18.8.1505 SAFETY INSPECTION PROGRAM: PURPOSE AND OUT-OF-SERVICE CRITERIA (1) The safety inspection program implemented by the U.S. Department of Transportation is intended to focus on those driver-related and mechanical factors most often (2) In addition to the federal regulations adopted in ARM 18.8.1502, the safety inspection program will follow Commercial Vehicle Safety Alliance (CVSA), North American Uniform Out-of-Service Criteria (April (3) remains the same.
AUTH: IMP: 44-1-1005, 61-10-154,
REASON:
New Rule I - The proposed new rule is necessary to move information on transportation of hazardous materials into a separate rule for clarity. The hazardous materials information is currently included with safety definitions, and is therefore difficult to find. The new rule will retain all current wording, and will also update the CFR citation to the most recent 2010 version.
ARM 18.8.202 - The proposed changes to (2) are necessary because the Single State Registration Program referenced in (2) was a federal program that was discontinued effective December 31, 2006. It has been replaced by the Unified Carrier Registration Program (UCR) and the proposed rule language will use the correct reference to UCR, as well as update the USC reference to the correct citation.
The proposed changes will also clarify that companies may register through International Registration Plan (IRP) and International Fuel Tax Agreement (IFTA), which are agreements with other jurisdictions for vehicle registration and fuel requirements.
The proposed changes to (3) are necessary because in order to register through IRP and IFTA, the companies must be in compliance with Federal Regulations for UCR. Companies do not have to participate in these programs but if they elect to participate they will need to be in compliance. MDT is therefore adopting the complete UCR federal rules by reference.
The proposed changes to (4) are necessary because the Interstate Commerce Commission was terminated in 1995, thus the rule reference to that defunct commission must be deleted. The duties are now under the Federal Motor Carriers Safety Administration(MCSA), thus the language on adoption of federal rules under the FMCSA is necessary and will remain.
The proposed new (5) is necessary because MDT is implementing a new federal program known as Performance and Registration Information Systems Management (PRISM). PRISM includes two major processes — the Commercial Vehicle Registration Process, and the Motor Carrier Safety Improvement Process (MCSIP) — which work along parallel lines to identify interstate motor carriers and hold them responsible for the safety of their operation.
First, under the Commercial Vehicle Registration Process a State's commercial vehicle registration process establishes a system of accountability by insuring that no vehicle is plated without identifying the carrier responsible for the safety of the vehicle during the registration year; and also serves as a powerful incentive for unsafe carriers to improve their safety performance through the use of registration sanctions. The vehicle registration process ensures that all carriers engaged in interstate commerce are uniquely identified through a USDOT number and the safety fitness of each carrier can then be checked prior to issuing vehicle registrations. Any motor carriers that have been prohibited from operating in interstate commerce may then have their ability to register vehicles denied.
Second, the Motor Carrier Safety Improvement Process (MCSIP) is the means by which a motor carrier's safety is systematically tracked and improvements are made to motor carriers with demonstrated poor safety performance through accurate identification, performance monitoring and treatment. MCSIP carriers that do not improve their safety performance face progressively more stringent penalties that may result in a Federal "unfit" or "imminent hazard" determination and the possible suspension of vehicle registrations by the state.
The proposed new rule changes at (5)(a) and (b) will establish use of PRISM in Montana, and set forth possible penalties such as denial of registration and permits, or suspension or revocation of state registration for carriers identified by the federal PRISM system as having an unfit safety rating. The rule language explains a carrier must come into compliance with the federal Motor Carrier Safety Administration Act - which compliance is to be determined by the Federal Motor Carriers Safety Administration - before a Montana registration or license plates may be issued or reinstated. Finally, the rule sets forth the ability of the Montana MCS Division to revoke a registration and confiscate license plates if a state registration has already been issued, and it is later discovered the carrier holds an unfit safety rating as determined by the federal Motor Carrier Safety Administration.
The proposed rule change will also add pertinent statutory citations to indicate those Montana statutes being implemented through this rule.
ARM 18.8.431, 18.8.432 - The proposed changes to ARM 18.8.431 and 18.8.432 are necessary to update citations to the current Code of Federal Regulations.
The proposed rule change will also add pertinent statutory citations to indicate those Montana statutes which both authorized and are being implemented through this rule.
ARM 18.8.1501 – The proposed changes to this rule will move the hazardous materials information into a separate rule for clarity. The definitions are currently included with the hazardous materials rule, and are therefore difficult to find. The proposed amendment will retain all current definitions, with changes to (a) "Commercial Motor vehicle" (to delete an outdated reference to kilograms and a redundant reference to farm vehicles which is already found in the CFR) and (i) "Motor Carrier" (to add "corporation" and "firm" to the definitions).
The proposed rule change will also delete and add pertinent statutory citations to indicate those Montana statutes which both authorized and are being implemented through this rule.
ARM 18.8.1502 – The proposed changes to (1) are necessary to further protect the public by incorporation by reference of additional parts of the Code of Federal Regulations. These additional regulations will allow Motor Carrier Safety Assistance Program (MCSAP) inspectors to complete a more thorough intrastate safety investigation of the carriers' records and recordkeeping through inspection of billing records, bills-of-lading, etc. Enforcement of these regulations ultimately protects Montana consumers.
The proposed changes to (2)(a) are necessary to change the name of the review from "intrastate safety fitness review" to "intrastate safety investigation" in order to align the name with federal language on these safety investigations.
The proposed deletion of (2)(b) will eliminate an exception to 49 CFR 385.13 which previously allowed intrastate carriers which were found to have an unsatisfactory rating during an intrastate safety investigation to continue to operate unabated inside Montana using unacceptable safety practices and procedures. The previous exception also gave carriers that failed to follow safety regulations an unfair advantage in day-to-day business cost over carriers who follow the regulations. The proposed rule change will delete this exception.
The proposed changes to the remaining subsections of the rule are necessary to eliminate outdated language on motor vehicle identification (MVI) numbers in use before 2005, to eliminate an exception for utility service vehicles which is no longer used in Montana, and to update rule language to current requirements on daily records.
The proposed rule change will also delete and add pertinent statutory citations to indicate those Montana statutes which both authorized and are being implemented through this rule.
ARM 18.8.1505 – The proposed changes to this rule are necessary to adopt the most current Commercial Vehicle Safety Alliance (CVSA) North American Uniform "Out-of-Service" criteria and update some archaic language. The proposed rule change will also delete and add pertinent statutory citations to indicate those Montana statutes which both authorized and are being implemented through this rule. The proposed rule change will also delete and add pertinent statutory citations to indicate those Montana statutes which both authorized and are being implemented through this rule.
5. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to: Dan Kiely or Jeff Steeger, Motor Carrier Services, Department of Transportation, PO Box 4639, Helena, Montana, 59604-4639; telephone (406) 444-7629 or (406) 444-4207; fax (406) 444-9263 or (406) 444-7681; TDD (406) 444-7696 or (800)335-7592; or e-mail dkiely@mt.gov or jsteeger@mt.gov, and must be received no later than 5:00 p.m., April 22, 2010.
6. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Dan Kiely or Jeff Steeger at the above address no later than 5:00 p.m., April 22, 2010.
7. If the agency receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be 400 persons based on the 4000 active intrastate MT DOT numbers.
8. 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 #5 above or may be made by completing a request form at any rules hearing held by the department.
9. 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 this 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.
10. The bill sponsor notice requirements of 2-4-302, MCA, do not apply.
/s/ Carol Grell Morris /s/ Jim Lynch Carol Grell Morris Jim Lynch Rule Reviewer Director Department of Transportation
Certified to the Secretary of State March 15, 2010.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
