WSR 13-15-140

PROPOSED RULES

WASHINGTON STATE PATROL

[Filed July 23, 2013, 1:00 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 13-11-117.

Title of Rule and Other Identifying Information: Commercial motor vehicle regulations.

Hearing Location(s): Washington State Patrol, General Administration Building, Room G-3, 210 11th Avenue S.W., Olympia, WA 98504-2600, on August 27, 2013, at 9:30 a.m.

Date of Intended Adoption: August 28, 2013.

Submit Written Comments to: CVEO 4 William Balcom, Motor Carrier Safety Division, P.O. Box 42614, Olympia, WA 98504-2614, e-mail William.balcom@wsp.wa.gov, fax (360) 596-3829, by August 23, 2013.

Assistance for Persons with Disabilities: Contact Melissa Van Gorkom by August 23, 2013, (360) 596-4017.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed changes include but may not be limited to:

WAC 446-65-010, specifying specific version of C.F.R. referenced by rule and clarify language under the rule to address incompatibilities with federal standards. The agency will also be adopting new C.F.R. requirements and providing cleanup to other language within the section.

WAC 446-65-030, amend the language regarding intrastate high risk carriers to be more in-line with the current federal process for identifying high risk carriers.

Reasons Supporting Proposal: Washington state patrol is in need of updating the regulations in order to align state rules with federal regulations.

Statutory Authority for Adoption: RCW 46.32.020.

Statute Being Implemented: RCW 46.32.020.

Rule is necessary because of federal law, 49 C.F.R. 172, 49 C.F.R. 173, 49 C.F.R. 180, 49 C.F.R. 395, and 49 C.F.R. 397.

Name of Proponent: Federal Motor Carrier Administration, Washington utilities and transportation commission, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: CVEO 4 William Balcom, P.O. Box 42614, Olympia, WA 98504-2614, (360) 596-3807; and Enforcement: WSP Commercial Vehicle Enforcement Bureau, P.O. Box 42614, Olympia, WA 98504-2614, (360) 596-3800.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement is not required for this proposal.

A cost-benefit analysis is not required under RCW 34.05.328. This proposal is implementing federal rules.

July 23, 2013

John R. Batiste

Chief

AMENDATORY SECTION (Amending WSR 12-03-080, filed 1/13/12, effective 2/13/12)

WAC 446-65-010 Transportation requirements.

(1) The Washington state patrol hereby adopts the following parts of Title 49 Code of Federal Regulations (C.F.R.), ((and any amendments thereto)) in effect on the effective date of this section, for motor carriers used in intrastate or interstate commerce in their entirety:

(a) Part 40 Procedures for transportation workplace drug and alcohol testing programs.

(b) Part 325 Compliance with interstate motor carrier noise emission standards.

(d) Part 355 Compatibility of state laws and regulations affecting interstate motor carrier operations.

(e) Part 365 Rules governing applications for operating authority.

(f) Part 367 Standards for registration with states.

(g) Part 372 Exemptions, commercial zones and terminal areas.

(h) Part 373 Receipts and bills.

(i) Part 376 Lease and interchange of vehicles.

(j) Part 379 Preservation of records.

(k) Part 380 Special training requirements.

(l) Part 381 Waivers, exemptions, and pilot programs.

(m) Part 382 Controlled substances and alcohol use and testing.

(n) Part 383 Compliance with commercial driver's license program.

(o) Part 385 Safety fitness procedures.

(p) Part 387 Minimum levels of financial responsibility for motor carriers.

(q) Part 390 General.

(r) Part 391 Qualification of drivers. Provided that 49 C.F.R. 391 subpart D (Tests), and E (Physical Qualifications and Examinations) do not apply to motor carriers operating vehicles with gross vehicle weight rating between 10,001 lbs. and 26,000 lbs. operating intrastate, and not used to transport hazardous materials in a quantity requiring placarding.

(s) Part 392 Driving of motor vehicles.

(t) Part 393 Parts and accessories necessary for safe operation.

(u) Part 395 Hours of service of drivers: Except if a company has:

(i) Drivers of commercial motor vehicle of any size, hauling logs from the point of production or driving in dump truck operations in intrastate commerce; or

(ii) Operators of intrastate property-carrying commercial motor vehicles that do not require a commercial drivers license to operate.

They are exempt from the requirements of C.F.R. 395.3 (maximum driving time) and C.F.R. 395.8 (record of duty status) and ineligible to use the provisions of C.F.R. 395.1 (e)(1), (g) and (o) provided that:

(A) The driver must:

(I) Operate within a one hundred air-mile radius of the location where the driver reports to work and the driver must return to the work reporting location at the end of each duty tour;

(II) Have at least ten consecutive hours off duty separating each on-duty period;

(III) Not drive:

• More than twelve hours following at least ten hours off duty; or

• After the fourteenth hour after coming on duty on at least five days of any period of seven consecutive days; and

• After the sixteenth hour after coming on duty on no more than two days of any period of seven consecutive days; and

• After having been on duty for ((eighty)) seventy hours in seven consecutive days if the employing motor carrier does not operate commercial motor vehicle every day of the week; or

• After having been on duty for ((ninety)) eighty hours in eight consecutive days if the employing motor carrier operates commercial motor vehicle every day of the week; in any period of seven or eight consecutive days may end with the beginning of any off-duty period of ((twenty-four)) thirty-four or more consecutive hours.

(B) The motor carrier that employs the driver must maintain and retain for a period of twelve months accurate and true time recordings showing:

(I) The time the driver reports for duty each day;

(II) The total number of hours the driver is on duty each day;

(III) The total number of hours the driver drives each day;

(IV) The time the driver is released from duty each day; and

(V) The total time the driver is driving and on duty for the preceding seven days.

(v) Part 396 Inspection, repair, and maintenance.

(w) Part 397 Transportation of hazardous materials; driving and parking rules.

(2) As provided in Part 395, exemption for agricultural transporters, the harvest dates are defined as starting February 1 and ending November 30 of each year.

(3) ((Agricultural operations exceptions:

(a) Agricultural operations transporting agricultural products other than Class 2 material (Compressed Gases), over roads, other than the National System of Interstate Defense Highways, between fields of the same farm, is excepted from Part 397 when:

(i) The agricultural product is transported by a farmer who is an intrastate private motor carrier.

(ii) The movement of the agricultural product conforms to all other laws in effect on or before July 1, 1998, and 49 C.F.R. 173.24, 173.24a, and 173.24b.

(b) The transportation of an agricultural product to or from a farm within one hundred fifty miles of the farm, is excepted from the requirements of 49 C.F.R. Part 172 subpart G (emergency response information) and H (training requirements) when:

(i) The agricultural product is transported by a farmer who is an intrastate private motor carrier;

(ii) The total amount of agricultural product being transported on a single vehicle does not exceed:

(A) Sixteen thousand ninety-four pounds of ammonium nitrate fertilizer properly classed as Division 5.1, PGIII, in bulk packaging; or

(B) Five hundred two gallons for liquids or gases, or five thousand seventy pounds for solids, of any other agricultural product;

(iii) The packaging conforms to the requirements of state law and is specifically authorized for transportation of the agricultural product by state law and such state law has been in effect on or before July 1, 1998; and

(iv) Each person having any responsibility for transporting the agricultural product or preparing the agricultural product for shipment has been instructed in the applicable requirements of 49 C.F.R. adopted in this section.

(c) Formulated liquid agricultural products in specification packaging of fifty-eight gallon capacity or less, with closures manifolded to a closed mixing system and equipped with a positive dry disconnect device, may be transported by a private motor carrier between a final distribution point and an ultimate point of application or for loading aboard an airplane for aerial application.

(4))) Links to the C.F.R.s are available on the Washington state patrol web site at www.wsp.wa.gov. Copies of the C.F.R.s may also be ordered through the United States Government Printing Office, 732 N. Capitol Street N.W., Washington, D.C. 20401.

AMENDATORY SECTION (Amending WSR 09-01-016, filed 12/5/08, effective 1/5/09)

WAC 446-65-030 Intrastate high risk and imminent hazard carriers.

(1) Any intrastate motor carrier receiving a proposed unsatisfactory safety rating may be identified as a high risk carrier pursuant to RCW 46.32.080. They may also be identified as high risk through analysis of various data, including but not limited to the following:

(a) ((Safety fitness rating (SafeStat score);

(b) Out of service rate that is higher than the national average for drivers and/or vehicles;

(c))) Carrier safety management system (CSMS score);

(i) A score of eighty-five or more in the crash, fatigued, or unsafe driving basic and one other behavior analysis and safety improvement categories at or above the "all other" motor carrier threshold.

(ii) Any four or more behavior analysis and safety improvement categories at or above the "all other" motor carrier threshold.

(b) Carrier requires or authorizes any driver or vehicle to operate in violation of an out of service order;

(((d) The number and severity of collisions to include fatalities and serious injury;

(e) Deficiencies or violations of safety management procedures and/or practices;

(f))) (c) Carrier who consistently refuses to come into compliance with federal and state regulations.

(2) If a motor carrier receives a high risk rating, they must undergo a compliance review by the Washington state patrol to determine compliance. During the compliance review:

(a) If no critical/acute violations are found, the carrier will be listed as satisfactory and be removed from the high risk category.

(b) If critical/acute violations are found, the carrier must:

(i) Schedule a follow-up compliance review with the Washington state patrol.

(A) If violations are found after the first compliance review, the follow-up compliance review must be scheduled within sixty to ninety days.

(B) If violations are found after the second compliance review, a third compliance review must be scheduled within one hundred twenty to one hundred eighty days.

(C) If repeat violations are found during any follow-up compliance review, all funds held in abeyance (suspended) from the previous audit will be reinstated along with any repeat violations/penalties.

(ii) Submit a carrier safety action plan within five days to the Washington state patrol outlining the action they have taken or will take to become compliant. This plan must:

(A) Be submitted on company letterhead.

(B) Be signed by the owner/officer of the company.

(D) Be reviewed and agreed upon by the Washington state patrol. The Washington state patrol may provide changes and request a carrier revise their safety plan and return it to the carrier for further action.

(iii) If a carrier's intrastate DOT number is inactivated:

(A) The carrier will receive a letter from the Washington state patrol advising them their intrastate DOT number has been inactivated and what steps need to be completed to be considered for reactivation.

(B) The Washington state patrol will notify the department of licensing that they have placed an out of service order on the carrier's intrastate DOT number and all vehicles registered to the carrier.

(C) The carrier will have a follow-up compliance review conducted and submit a carrier safety action plan outlining their plans for compliance.

(D) The Washington state patrol will review the safety plan and a follow-up compliance review will be conducted. If the carrier receives a rating of satisfactory or conditional, then the DOT number will be reinstated.

(iv) If a carrier's intrastate DOT number is reinstated:

(A) The carrier will receive a letter from the Washington state patrol advising them their DOT number will be reinstated.

(B) The carrier will need to update their information on a MCS150 form located on the Federal Motor Carrier Safety Administration (FMCSA) web site.

(3) An intrastate motor carrier may be deemed an imminent hazard pursuant to RCW 46.32.080 (3)(e) and placed out of service without going through any prior compliance reviews. In determining whether a motor carrier is an imminent hazard or danger to the public health, safety, or welfare, the chief of the Washington state patrol or their designee must consider safety factors. A safety factor which constitutes an imminent hazard includes any safety problem or condition which is likely to result in serious injury or death if not discontinued immediately.

(4) If a carrier is required to have a DOT number, they will be required to properly mark their vehicles as prescribed by the Washington state patrol. The marking must display the following:

(a) The legal name or a single trade name of the motor carrier as listed on the MCS150 form.

(b) The motor carrier identification number issued by the FMCSA, preceded by the letter "USDOT."

(i) Size, shape, location, and color of markings:

(A) Appear on both sides of the CMV;

(B) Be in letters that contrast sharply in color with the background on which the letters are placed;

(D) Be kept and maintained in a manner that retains the legibility.

(ii) Construction and durability:

(A) The marking may be painted on the CMV; or

(B) May consist of a removable device.