BEFORE THE TRANSPORTATION COMMISSION
OF THE STATE OF MONTANA
In the matter of the adoption of New Rule I and amendment of ARM 18.6.202 pertaining to Outdoor Advertising Control
NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND AMENDMENT
TO: All Concerned Persons
1. On August 4, 2017, at 10:00 a.m., the Department of Transportation will hold a public hearing in the Transportation Commission meeting room, room number 200 of the Montana Department of Transportation building, 2701 Prospect Ave., Helena, Montana, to consider the proposed adoption and 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 July 28, 2017, to advise us of the nature of the accommodation that you need. Please contact Patrick J. Hurley, Department of Transportation, Outdoor Advertising Control, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6068; fax (406) 444-7254; TTY Service (406) 444-7696 or (800) 335-7592; or e-mail email@example.com.
3. The rule as proposed to be adopted provides as follows:
NEW RULE I ADVERTISING ON TRANSIT SHELTERS AND BENCHES
(1) A transit outdoor advertising permit (transit advertising permit) must be obtained for commercial advertising on shelters or benches erected or placed along controlled routes. Transit advertising permits are prohibited on interstate routes.
(2) Shelters or benches eligible for transit advertising permits must be located within government-owned right-of-way, and must meet the following requirements:
(a) the applicant must be a local transit agency or governmental entity. Private applicants are not eligible for transit advertising permits;
(b) an application must include a department-issued encroachment permit or the equivalent local government permission allowing the shelter or bench to be located within the right-of-way. A copy must accompany the transit advertising permit application;
(c) an application must include local government approval on a form provided by the department. Applicants must comply with all applicable local regulations; and
(d) the applicant may submit multiple shelter or bench transit advertising permit applications simultaneously, and only one inspection fee is required for the applications within the same applicant's jurisdictional area.
(3) A shelter or bench located outside government-owned right-of-way is not eligible for a transit advertising permit and must meet all applicable outdoor advertising statutes and rules for a general off-premise outdoor advertising permit. A shelter or bench granted a general outdoor advertising permit for a location outside right-of-way, must not be moved onto right-of-way, or is subject to immediate permit revocation by the department, and immediate removal of the shelter or bench under department right-of-way encroachment processes.
(4) A transit advertising permit may only be issued for a shelter or bench on controlled routes which are active fixed transit routes as established by the transit agency or local government, excluding routes or portions of routes used solely for inter-city transit. Upon the transit agency's or local government's discontinuance of any portion of an active route, transit advertising permits on the discontinued portion of the route must be relinquished by the permit holder, or revoked by the department.
(5) A transit advertising permit holder may enter an agreement to allow a third party to place advertising which complies with this rule on a shelter or bench, at the permit holder's discretion, and under the permit holder's permit number and authority.
(6) Shelter advertising signs may only be placed on the interior or exterior of the side shelter panel farthest from oncoming traffic, perpendicular to the road. The designated shelter panel may only display one sign on the interior, and one sign on the exterior, for a limit of two signs per shelter. Each sign must not exceed 24 square feet in size, and must not extend beyond the exterior limit of the shelter. One transit advertising permit is required per shelter.
(7) Bus bench advertising signs may only be placed on the front or rear of the bench back, excluding supports. The bench back may only display one sign on the front and one sign on the rear, for a limit of two signs per bench. Each sign must not exceed two feet in height and eight feet in length, for a maximum of sixteen square feet. One transit advertising permit is required per bus bench.
(8) Spacing requirements for a transit advertising permit include:
(a) permits must be located at least 500 feet from another transit advertising permit, on the same side of the controlled route; and
(b) a transit advertising permit will not be considered in determining the spacing required between other non-transit permitted off-premise advertising signs.
(9) A transit advertising permit is exempt from any rule requirements for sign distances from intersections.
(10) A transit advertising permit must comply with appropriate sign characteristic limitations found in ARM 18.6.231(3). Shelter and bench advertising may not include changeable electronic lighting.
(11) A shelter or bench must display a permanently attached transit advertising permit, visible to the traveling public.
(12) Existing shelter or bench advertising must comply with this rule within one year, or before [effective date of New Rule I], or the advertising will be deemed illegal.
AUTH: 75-15-121, MCA
IMP: 75-15-111, 75-15-112, 75-15-113, MCA
REASON: Current state and federal regulations generally prohibit advertising within the state highway right-of-way, where most transit/passenger shelters and bus benches are located. Federal guidance states activities are permissible within the right-of-way on any highway system other than the interstate system if the State provides satisfactory assurances to Federal Highway Administration (FHWA) that such use is in the public interest and will not adversely affect the highway or interfere with the free and safe flow of traffic thereon.
Proposed New Rule I is necessary to address the public interest by allowing transit/passenger shelters and bus benches in the right-of-way to display commercial advertising. The shelters and benches provide a necessary service for the transit system patrons, but New Rule I will require the transit agency or local government to apply for and hold the transit advertising permit to show the shelter's or bench's use for the public good. The allowed advertising on those necessary shelters or benches will be able to provide revenue to the transit agency, local government, or third party with whom they contract, for maintenance of the structures. The transit agency or local government will also control the further grant or contract of the advertising program to any qualified supplier, as deemed necessary. New Rule I's limitation on advertising size and numbers will also control aesthetics along the highways.
The department has addressed the impact of transit/passenger shelter advertising on free flow of traffic and highway safety by reviewing crash reports in locations with existing advertising of this type within the State. No increase in crashes, or correlation with advertising distraction as a cause of a crash was identified. New Rule I's requirement for placement of a limited amount of advertising on a specific location within the shelter, or in limited sign size on benches, with prohibition of electronic or LED signs, will ensure the placement of this type of advertisement within the right-of-way does not interfere with the free flow of traffic or highway safety.
Proposed New Rule I will allow outdoor advertising on transit/passenger shelters or bus benches outside the government right-of-way to remain the same, and continue to require the grant of a general off-premise commercial outdoor advertising permit under all existing outdoor advertising statutes and rules.
4. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:
18.6.202 DEFINITIONS (1) through (5) remain the same.
(6) "Bus bench" or "bench" means a structure built for the dedicated purpose of providing seating for transit riders while waiting for a public transit vehicle. The term does not include benches erected as trail or street furniture unrelated to transit operations.
(6) through (38) remain the same, but are renumbered (7) through (39).
(40) "Shelter" means a structure built for the dedicated purpose of protecting transit riders from the elements while waiting for a public transit vehicle. The term includes structures known as transit shelters or passenger shelters, intended for human occupancy, but does not include a structure erected for housing of buses or other vehicles.
(39) through (43) remain the same, but are renumbered (41) through (45).
(46) "Transit outdoor advertising permit" or "transit advertising permit" means a special use permit issued by the department for commercial advertising on a transit/passenger shelter or bus bench located within government-owned right-of-way, which qualifies under [New Rule I]. A transit outdoor advertising permit is exempt from certain administrative rule requirements in this chapter on qualification, application process, inspection fee, location, size, spacing, intersection distances, and certain sign characteristics, but must meet all requirements on those elements found in [New Rule I].
(44) through (47) remain the same, but are renumbered (47) through (50).
AUTH: 75-15-121, MCA
IMP: 75-15-103, 75-15-111, 75-15-112, 75-15-113, 75-15-121, MCA
REASON: The proposed amendment is necessary to establish a definition for the terms "bus bench," "shelter" and "transit outdoor advertising permit" which are used in proposed New Rule I. The "bus bench" definition is necessary to distinguish between bus benches for use by transit riders, and other types of street furniture benches, which are not included as potential advertising locations in New Rule I. The "shelter" definition is necessary to distinguish between shelters erected for human occupancy, on which permitted advertising may be placed, and shelters erected to house buses or other vehicles, which are not included as potential advertising locations in New Rule I. The "transit outdoor advertising permit" definition is necessary to define a special use permit granted under New Rule I, with different requirements and certain administrative rule exemptions, which distinguish this permit from other general outdoor advertising permits issued by the department.
5. 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: Patrick J. Hurley, Department of Transportation, Outdoor Advertising Control, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6068; fax (406) 444-7254; or e-mail firstname.lastname@example.org, and must be received no later than 5:00 p.m., August 4, 2017.
6. Carol Grell Morris, Department of Transportation, has been designated to preside over and conduct this hearing.
7. 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. An Administrative Rules Notice Interested Person's List Request Form is located at the Department of Transportation's web site at the following address: http://www.mdt.mt.gov/publications/docs/forms/mdt-leg-003_interested-persons-list.pdf.
8. 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.
9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
10. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption and amendment of the above-referenced rules will not significantly and directly impact small businesses.
11. With regard to the requirements of 2-15-142, MCA, the department has determined that the adoption and amendment of the above-referenced rules will not have direct tribal implications.
/s/ Carol Grell Morris /s/ Michael T. Tooley
Carol Grell Morris Michael T. Tooley
Rule Reviewer Director
Department of Transportation
/s/ Barb Skelton
Certified to the Secretary of State, June 26, 2017.