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| Montana Administrative Register Notice 18-170 | No. 9 05/11/2018 | |
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BEFORE THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On June 12, 2018, the Department of Transportation proposes to 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 June 1, 2018, to advise us of the nature of the accommodation that you need. Please contact Gabe Priebe, Utilities Engineering Manager, Department of Transportation, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6080; fax (406) 444-7254; TTY Service (406) 444-7696 or (800) 335-7592; or e-mail gpriebe@mt.gov.
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
18.7.202 DEFINITIONS
(1) "Clear recovery area" means that portion of the highway right‑of‑way as established by the department. Unless otherwise provided, the distance for this area shall be 30 feet from the outer edge of the outside travel lane on paved sections or 42 feet from the centerline of the road on unpaved sections, or "clear zone" as defined by the 2011 edition of the AASHTO publication "Roadside Design Guide," whichever is greater. Copies of AASHTO publications are available for inspection and copying at the department's offices in Helena. Copies of current AASHTO publications are available for purchase at https://bookstore.transportation.org/. (2) "Department" means the state of Montana Department of Transportation and its authorized agents and representatives. (3) "District" means the specific geographic area of the state designated by the Department of Transportation as a district. There are five district headquarters, which are currently located in Missoula, Butte, Great Falls, Billings, and Glendive. (4) "District administrator" means the administrative head of each district or the designee of the district engineer. (5) "Facility" means all pipes, mains, conduits, cables, wires, towers, poles, and other equipment, structures, and appliances built or installed by any utility or non‑utility for the purpose of transporting, transmitting, furnishing, and/or distributing hydro‑carbons and the products thereof, electric power and energy, communication signals, water, and sewage. (6) "Full controlled‑access facility" means those portions of an interstate highway, throughway, or throughway intersection which the Highway Commission designates for through traffic or other federal‑aid or state highways over, from, or to which the owners or occupants of abutting land or other persons have no easement of access, light, air, or view. It also means those portions of spurs of the interstate system which the Highway Commission designates as unsafe or impeded by unrestricted access of traffic from intersecting streets or alleys or public or private roads or ways of passage. (7) "Highway" means any highway under the jurisdiction of the Department of Transportation. (8) "Highway right‑of‑way" means the land owned or controlled by the State of Montana Department of Transportation which is designated as highway right‑of‑way. (9) "Highway structure" means any structure located on a highway that is under the jurisdiction of the Department of Transportation and constructed for the purpose of carrying vehicular, rail, or pedestrian traffic over a depression, stream, obstacle, roadway, walkway, or railroad. (10) "Occupancy agreement," "common use agreement," or "encroachment permit" means the documents the owner must secure from the department, prior to occupancy, showing the conditions of occupancy of highway right‑of‑way, whether such occupancy is overhead, underground, or on the surface. (11) "Retained facility" means an existing facility which occupies right‑of‑way required for a new highway project by virtue of a permit, right, or easement under which it was originally installed. (12) "State" means the State of Montana and the State of Montana Department of Transportation as a duly constituted agency thereof, and its employees. (13) "State highway project" means any highway construction project on a highway that is under the jurisdiction of the Department of Transportation. (14) "Utility" means: (a) all public utilities as defined by 69‑3‑101, MCA, but including publicly owned water and sewer facilities; (b) all common carrier pipelines as defined by 69‑13‑101, MCA; and (c) all rural cooperative, non‑profit membership corporations organized under the Rural Electric and Telephone Cooperative Act, as set forth in 35‑18‑101 through 35‑18‑503, MCA.
AUTH: 60‑3-101, 60‑4‑402, MCA IMP: 60‑3‑101, 60‑4‑402, MCA
REASON: The proposed amendment is necessary to alphabetize all current definitions to meet State of Montana administrative rule formatting requirements. All definitions remain exactly as currently written, except as noted below:
New (1): The proposed amendment to (1) is necessary to update the references to clear zone measurements in feet, rather than meters, and to the 2011 edition of the AASHTO publication "Roadside Design Guide," with the current website address for purchase of the publication.
New (14)(a): The 2017 Legislature enacted Ch. 203, L. 2017 (HB 374), An Act Clarifying That Certain Utility Facilities May Occupy a Highway Right-of-Way; Requiring that Rules Adopted for Occupancy and Relocation of Utilities in Highway Right-of-Way Include Provisions for Publicly Owned Water and Sewer Facilities. The proposed amendment to ARM 18.7.202(14)(a) will conform to the new legislative changes by amending the definition of "Utility" as used in this subchapter to include publicly owned water and sewer facilities such as municipal, county, or consolidated city and county water and sewer districts, in accordance with the new statutory language found in 60-4-402, MCA.
18.7.206 AUTHORITY OF PRIVATE AND PUBLIC UTILITY LINES (1) All utilities defined in (2) remains the same.
AUTH: 60‑3‑101, 60‑4‑402, MCA IMP: 60‑3‑101, 60‑4‑402, MCA
REASON: The proposed amendment to ARM 18.7.206 is necessary to delete an incorrect cross-reference to ARM 18.7.202(3), as the correct section will be changed with the proposed alphabetization of the definitions.
4. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to Gabe Priebe, Utilities Engineering Manager, Department of Transportation, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6080; fax (406) 444-7254; TTY Service (406) 444-7696 or (800) 335-7592; or e-mail gpriebe@mt.gov, and must be received no later than 5:00 p.m., June 8, 2018.
5. 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 Gabe Priebe at the above address no later than 5:00 p.m., June 8, 2018.
6. 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 74 persons based on 742 community or combined water sewer districts listed on the Montana Drinking Water Watch website.
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 4 above or may be made by completing a request form on the department's website, or at any rules hearing held by the department.
8. An electronic copy of this proposal notice is available on the Department of Transportation website at www.mdt.mt.gov.
9. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by email and U.S. Mail on July 14, 2017.
10. With regard to the requirements of 2-4-111, MCA, the department has determined that the 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 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
Certified to the Secretary of State May 1, 2018. |
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.
