WSR 17-22-123
[Filed October 31, 2017, 4:05 p.m., effective October 31, 2017, 4:05 p.m.]
Effective Date of Rule: Immediately upon filing.
Purpose: To amend WAC 446-65-010(1) to bring current the effective date of all the Code of Federal Regulations (C.F.R.) adopted by reference in the rule.
Citation of Rules Affected by this Order: Amending WAC 446-65-010.
Statutory Authority for Adoption: RCW 46.32.020.
Other Authority: RCW 46.48.170.
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: A regulatory review performed by the Federal Motor Carrier Safety Administration (FMCSA) during the spring of 2017 noted that many of the C.F.R. adopted in WAC 446-65-010 were not the C.F.R. currently in effect. The lack of conformity was the result of specific language in WAC 446-65-010 that adopted the federal regulations "in effect on the effective date" of the rule, which was October 4, 2013. Since the rule adoption in 2013, many of the C.F.R. adopted by reference in the rule have been amended, some to a significant degree.
On August 29, 2017, the Washington state patrol was notified that the Owner-Operator Independent Driver's Association submitted a petition to FMCSA alleging that Washington state's administrative rules are out of compliance with a 2015 change to 49 C.F.R. 395 relating to electronic logging devices (ELD). The petition asserts that under the current WAC, Washington will not have authority to enforce the ELD requirement when it goes into effect in December 2017. The petition asks FMCSA to withdraw funds from noncompliant states, such as Washington.
Failure to update WAC 446-65-010 to incorporate all of the recent amendments to the C.F.R. adopted by reference therein could jeopardize grant funding to the state in the amount of $6,462,667. Therefore, the adoption of this rule change, which brings all of the C.F.R. incorporated by reference current to October 1, 2017, will allow enforcement of all of the federal regulations contained in WAC and will enable the uninterrupted receipt of grant funds to Washington, both of which will preserve the public health, safety and general welfare of our citizens.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 1, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: October 30, 2017.
John R. Batiste
AMENDATORY SECTION (Amending WSR 13-18-069, filed 9/3/13, effective 10/4/13)
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.), ((in effect on the effective date of this section)) as they exist on October 1, 2017, 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.
(c) Part 350 Commercial motor carrier safety assistance program.
(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 drivers of commercial motor vehicle of any size, hauling logs from the point of production or driving in dump truck operations in intrastate commerce provided that:
(i) The driver must:
(A) 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;
(B) Have at least ten consecutive hours off duty separating each on-duty period;
(C) 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 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 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 or more consecutive hours.
(ii) The motor carrier that employs the driver must maintain and retain for a period of twelve months accurate and true time recordings showing:
(A) The time the driver reports for duty each day;
(B) The total number of hours the driver is on duty each day;
(C) The total number of hours the driver drives each day;
(D) The time the driver is released from duty each day; and
(E) 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) Links to the C.F.Rs. are available on the Washington state patrol web site at Copies of the C.F.Rs. may also be ordered through the United States Government Printing Office, 732 N. Capitol Street N.W., Washington, D.C. 20401.