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Montana Administrative Register Notice 18-145 No. 1   01/16/2014    
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BEFORE THE DEPARTMENT OF TRANSPORTATION

OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rule I and the amendment of ARM 18.8.1501,18.8.1502, and 18.8.1503 pertaining to motor carrier services safety assistance program

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NOTICE OF PROPOSED ADOPTION AND AMENDMENT

 

NO PUBLIC HEARING CONTEMPLATED

 

TO: All Concerned Persons

 

1. On February 17, 2014, 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 February 6, 2014, to advise us of the nature of the accommodation that you need. Please contact Dennis Hult, Department of Transportation, Motor Carrier Services Division, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-9237; fax (406) 444-7681; TTY Service (406) 444-7696 or (800) 335-7592; or e-mail dhult@mt.gov.

 

3. The rule as proposed to be adopted provides as follows:

 

NEW RULE I COMMERCIAL VEHICLE SAFETY PROGRAM OPERATIONS 

(1)  The department shall implement a commercial vehicle safety program to assume responsibility for improving motor carrier safety and enforcing safety standards under federal regulations adopted by reference in ARM 18.8.1502 and state standards found in Montana statutes and administrative rules.

(2) The commercial vehicle safety program shall conduct safety inspections and investigations of hazardous material shippers, for-hire motor carriers, private motor carriers, or any motor vehicle or vehicle combination as defined in 61-10-154, MCA, when the vehicle is used in interstate or intrastate commerce in Montana.

(3) The department shall designate motor carrier services officers as peace officers under 61-10-154, MCA, with authority to conduct the following safety program activities:

(a) Enforce the provisions of Title 49, USC, and the federal regulations that have been adopted under Title 49 in the Code of Federal Regulations;

(b) Enforce the provisions of the Commercial Vehicle Safety Alliance (CVSA), North American Out-of-Service Criteria, as incorporated by reference in ARM 18.8.1505;

(c) Conduct roadside inspections of commercial motor vehicles for compliance with federal and state safety requirements;

(d) Conduct investigations of commercial motor carriers or hazardous materials shippers for compliance with federal and state safety requirements or hazardous materials requirements, including right of entry for investigations at the commercial motor carriers' place of business;

(e) Require production of documents relating to the commercial motor carrier and commercial motor vehicle safety regulations adopted under administrative rules;

(f) Issue citations and make arrests in connection with violations of safety standards adopted under these administrative rules; and

(g) All other reasonable activities allowed by federal statutes or regulations, or by state statutes, or administrative rules related to safety inspections and investigations.

(4) The department shall designate civilian safety inspectors, with authority to conduct the following safety program activities:

(a) Enforce the provisions of Title 49, USC, and the federal regulations that have been adopted under Title 49 in the Code of Federal Regulations;

(b) Enforce the provisions of the Commercial Vehicle Safety Alliance (CVSA), North American Out-of-Service Criteria, as incorporated by reference in ARM 18.8.1505;

(c) Conduct roadside inspections of commercial motor vehicles for compliance with federal and state safety requirements;

(d) Conduct investigations of commercial motor carriers or hazardous materials shippers for compliance with federal and state safety requirements or hazardous materials requirements, including right of entry investigations at the commercial motor carriers' place of business;

(e) Require production of documents relating to the commercial motor carrier and commercial motor vehicle safety regulations adopted under administrative rules;

(f) Refer violations and violators to designated motor carrier services officers or Montana Highway Patrol (MHP) officers for issuance of citations and performance of arrests in connection with violations of safety standards adopted under these administrative rules; and

(g) All other reasonable activities allowed by federal statutes or regulations, or by state statutes, or administrative rules related to safety inspections and investigations.

(5) The department shall coordinate with MHP for MHP officer enforcement of the federal and state safety regulations adopted in Montana. MHP officers shall have authority to conduct all of the following safety program activities:

(a) Enforce the provisions of Title 49, USC, and the federal regulations that have been adopted under Title 49 in the Code of Federal Regulations;

(b) Enforce the provisions of the Commercial Vehicle Safety Alliance (CVSA), North American Out-of-Service Criteria, as incorporated by reference in ARM 18.8.1505;

(c) Conduct roadside inspections of commercial motor vehicles for compliance with federal and state safety requirements;

(d) Conduct investigations of commercial motor carriers or hazardous materials shippers for compliance with federal and state safety requirements, or hazardous materials requirements, including right of entry for investigations at the commercial motor carriers' place of business;

(e) Require production of documents relating to the commercial motor carrier and commercial motor vehicle safety regulations adopted under administrative rules;

(f) Issue citations and make arrests in connection with violations of safety standards adopted under these administrative rules; and

(g) All other reasonable activities allowed by federal statutes or regulations, or by state statutes, or administrative rules related to safety inspections and investigations.

 

AUTH: 61-10-155, MCA

IMP: 44-1-1005, 61-10-154, MCA

 

REASON: The proposed new rule is necessary because the department's Motor Carrier Safety Assistance Program (MCSAP) was reviewed by the Federal Motor Carrier Safety Administration (FMCSA) in June, 2013. FMCSA Finding No. 2 stated the department had failed to adopt right-of-entry authority for all officers and inspectors conducting safety inspections. The proposed new rule will set forth the right-of-entry authorities including: enforcement of federal safety requirements; performance of roadside inspections; performance of investigations, including at the commercial motor carriers' place of business; and requirement of document production. The proposed new rule will also clarify that department motor carrier peace officers and MHP officers may issue citations and make arrests in connection with violation of safety standards, while department civilian safety inspectors may refer violators of safety standards to designated MCS officers or MHP officers for citation issuance or arrests. Proposed New Rule I will bring the department into compliance with the FMCSA review Finding No. 2.

 

4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            18.8.1501 MOTOR CARRIER SAFETY DEFINITIONS (1) through (2) remain the same.

            (3) For purposes of transportation of hazardous materials in commerce, and subchapter 15 of these rules, the department adopts by reference the definitions found at 49 CFR §171.8, with the following clarification:

            (a) "Hazardous materials shipper" means an individual, corporation, company, association, firm, partnership, society, joint stock company, government, Indian tribe, or authority of a government or tribe, that:

(i)  offers a hazardous material for transportation in commerce;

            (ii)  transports a hazardous material to support a commercial enterprise and is a private motor carrier;

(iii)  performs, or is responsible for performing, any pre-transportation function required by state or federal statute or rule for the transportation of hazardous materials in commerce; or

(iv)  tenders or makes hazardous materials available to a carrier for transportation in commerce.

 

AUTH: 61-10-155, MCA

IMP: 61-10-141, 61-10-154, MCA

 

REASON:  The proposed amendment of ARM 18.8.1501 is necessary because the department's Motor Carrier Safety Assistance Program (MCSAP) was reviewed by the Federal Motor Carrier Safety Administration (FMCSA) in June, 2013. FMCSA Finding No. 1-c stated the department had failed to make hazardous materials shippers subject to federal and state hazardous materials shipping regulations. The proposed amendment will define "hazardous materials shipper" to clarify persons and groups subject to federal and state hazardous materials shipping regulations in Montana.

 

            18.8.1502 FEDERAL MOTOR CARRIER SAFETY RULES AND STATE MODIFICATIONS (1) remains the same.

            (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 safety investigation will be referred to as an "intrastate safety investigation."  An intrastate safety investigation may only be conducted by a civilian inspector authorized by the department to perform such reviews in compliance with [New Rule I].

            (b) through (f) remain the same.  

 

AUTH: 61-10-155, MCA

IMP: 61-10-141, 61-10-154, MCA

 

REASON: The proposed amendment to ARM 18.8.1502 is necessary to make the rule consistent with New Rule I on the department's Safety Program Operations, and the authorities for safety inspections by department MCS officers, MHP officers, and department civilian safety inspectors. The proposed amendment will delete an unnecessary reference to civilian inspector authorization to avoid any conflicts with New Rule I.

 

18.8.1503 TRANSPORTATION OF HAZARDOUS MATERIALS (1) A commercial motor vehicle, or motor carrier, or hazardous materials shipper 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 April 1, 2013.  Copies may be obtained from the U.S. Government Printing Office, 732 North Capitol Street, NW, Washington, DC 20401-0001, or on the Internet at www.gpo.gov.

 

AUTH: 61-10-155, MCA

IMP: 61-10-154, MCA

 

REASON: The proposed amendment of ARM 18.8.1503 is necessary because the department's Motor Carrier Safety Assistance Program (MCSAP) was reviewed by the Federal Motor Carrier Safety Administration (FMCSA) in June, 2013. FMCSA Finding No. 1-c stated the department had failed to make hazardous materials shippers subject to federal and state hazardous materials shipping regulations. The proposed amendment will add "hazardous materials shipper," as defined in ARM 18.8.1501, to the list of entities subject to federal and state hazardous materials shipping regulations in Montana.

 

5. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Dennis Hult, Department of Transportation, Motor Carrier Services Division, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-9237; fax (406) 444-7681; or e-mail dhult@mt.gov, and must be received no later than 5:00 p.m., February 13, 2014.

 

6. If persons who are directly affected by the proposed actions 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 Dennis Hult at the above address no later than 5:00 p.m., February 13, 2014.

 

7. If the agency receives requests for a public hearing on the proposed action from either 10 percent 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 9,570 persons based on 95,702 permits issued in the 2012 calendar year.

 

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 contact requirements of 2-4-302, MCA, do not apply.

 

11. 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.

 

 

/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 January 6, 2014.

 

 

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