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| Montana Administrative Register Notice 23-3-273 | No. 15 08/04/2023 | |
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BEFORE THE DEPARTMENT OF JUSTICE OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On September 4, 2023, the Department of Justice proposes to adopt, amend, and repeal the above-stated rules.
2. The Department of Justice 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 the Department of Justice no later than 5:00 p.m. on August 18, 2023, to advise us of the nature of the accommodation that you need. Please contact Laurie Bakri, Department of Justice, Motor Vehicle Division, 302 North Roberts, Scott Hart Building, P.O. Box 201430, Helena, Montana, 59620-1430; telephone (406) 444-3638; fax (406) 444-2086; or e-mail [email protected].
3. The rule as proposed to be adopted provides as follows:
NEW RULE I RECORDS CHECK PRIOR TO PROCESSING A COMMERCIAL DRIVER LICENSE APPLICATION, ENTRY-LEVEL DRIVER TRAINING, AND DRUG AND ALCOHOL CLEARINGHOUSE (1) The department shall conduct an electronic query to the entry-level driver training provider registry before administering a commercial driver license skills test to a nonexempt applicant: (a) for a class A or class B commercial driver license; (b) upgrading from a class B to a class A; (c) upgrading from a class C to a class B or A; or (d) obtaining a passenger or school bus endorsement. (2) The department shall conduct an electronic query to the entry-level driver training provider registry before administering a commercial driver license knowledge test to a nonexempt applicant for a hazardous material endorsement. (3) The department may not conduct a commercial driver license skills test or a hazardous material knowledge test when the entry-level driver training provider registry does not validate the nonexempt applicant has completed the requisite entry-level driver training. (4) Prior to issuing, renewing, transferring, or upgrading a commercial driver license, the department shall electronically query the commercial driver license drug and alcohol clearinghouse to verify the applicant is not prohibited from operating a commercial motor vehicle. The department may not issue, renew, transfer, or upgrade a commercial driver's license or commercial learner's permit when the result from the clearinghouse indicates the driver is prohibited from operating a commercial motor vehicle. (5) Upon receiving notification from the commercial driver license drug and alcohol clearinghouse or from the federal motor carrier safety administration that a holder of a commercial driver license or commercial learner's permit is prohibited from operating a commercial motor vehicle, the department shall downgrade the driver's commercial driver license or commercial driver's permit to a noncommercial driver license within 60 days of receiving the notification. (6) If, after the department completes and records the downgrade of a commercial driver license or commercial learner's permit, the department receives notification from the drug and alcohol clearinghouse or the federal motor carrier safety administration that the driver is no longer prohibited from operating a commercial motor vehicle, or was erroneously identified as prohibited from operating a commercial motor vehicle, the department shall: (a) upgrade the noncommercial license back to a commercial driver license or commercial learner's permit, as long as the term of the commercial driver license or commercial learner's permit has not expired; and (b) expunge any reference to the driver's prohibited status from the driver's driving record if the commercial driver license or commercial learner's permit was erroneously downgraded based on a false prohibited status response or notification from the commercial driver license drug and alcohol clearinghouse or the federal motor carrier safety administration.
AUTH: 61-14-202, MCA
REASON: The 2023 Montana Legislature adopted Senate Bill 47 requiring the Department of Justice (DOJ) to query the Entry-Level Driver Training (ELDT) provider registry and the Commercial Drug and Alcohol Clearinghouse (DACH) under certain conditions. Senate Bill 47 requires the department to take certain actions as a result of the required queries.
The legislation authorized DOJ to adopt rules governing the administration of commercial drivers' license (CDL) tests for nonexempt applicants for a class A or B CDL, upgrading from a class B to a class A CDL, or for obtaining a passenger, school bus, or hazardous materials endorsement.
The legislation required DOJ to adopt rules which mandate checking an applicant's eligibility by electronically querying the DACH prior to issuing, renewing, transferring, or upgrading a CDL. The rules state that the department may not issue a CDL when the result from the clearinghouse indicates the driver is prohibited from operating a commercial motor vehicle. In addition, the department shall downgrade a current CDL holder's commercial driving privilege upon receiving notice the driver is prohibited from operating a commercial motor vehicle.
4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
23.3.502 DEFINITIONS Unless the context indicates otherwise, the words and phrases in this subchapter have the definitions set forth in this rule. (1) through (20) remain the same. (21) "Nonexempt commercial driver's license applicant" means an applicant for a commercial driver license, passenger endorsement, school bus endorsement, or hazardous material endorsement who cannot prove to the department's satisfaction that they are exempt from completing the training required as provided in 49 CFR 383.71. The department may exempt the applicant if: (a) the department's records substantiate the applicant previously held the applicable commercial license or endorsements; or (b) the applicant receives certification from a state where the applicant previously held the applicable commercial license or endorsement. (21) through (27) remain the same, but are renumbered (22) through (28).
AUTH: IMP: 20-10-103, 61-5-102, 61-5-104, 61-5-105, 61-5-106, 61-5-107, 61-5-108, 61-5-110, 61-5-111, 61-5-112, 61-5-113, 61-5-114, 61-5-115, 61-5-116, 61-5-305, 61-5-306, MCA
REASON: With the adoption Senate Bill 47 by the 2023 Montana Legislature, the Department of Justice needs to define "Nonexempt commercial driver's license applicant" to properly implement the requirements of Senate Bill 47. The department shall conduct an electronic query to the ELDT provider registry before testing all nonexempt applicants for a class A or class B CDL, for upgrading from a class A CDL to a class B CDL, or for adding a passenger, school bus, or hazardous materials endorsement.
23.3.524 REQUIREMENTS FOR A SCHOOL BUS ENDORSEMENT (1) Examiners of applicants for a school bus endorsement shall have a commercial driver's license and preferably at least two years' experience driving a school bus in Montana. (1) through (4) remain the same, but are renumbered (2) through (5).
AUTH: IMP:
REASON: The 2023 Montana Legislature adopted Senate Bill 47 which stipulates anyone applying to be a school bus endorsement examiner has the proper experience. The legislation authorized the Department of Justice to adopt rules specifying the examiner has a commercial driver's license and preferably has at least two years' experience driving a school bus.
5. The department proposes to repeal the following rule:
23.3.519 EXCHANGING OR CONVERTING A CHAUFFEUR'S LICENSE TO COMMERCIAL VEHICLE OPERATOR'S ENDORSEMENT
AUTH: 61-5-112, 61-5-117, 61-5-125, MCA IMP: 61-5-102. 61-5-105, 61-5-106, 61-5-107, 61-5-108, 61-5-110, 61-5-111, 61-5-112, 61-5-201, 61-5-209, 61-5-210, MCA
REASON: This rule is outdated because chauffer's licenses have not been issued since 1995.
6. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Laurie Bakri, Department of Justice, Motor Vehicle Division, 302 North Roberts, Scott Hart Building, P.O. Box 201430, Helena, Montana, 59620-1430; telephone (406) 444-3638; fax (406) 444-2086; or e-mail [email protected], and must be received no later than 5:00 p.m., September 1, 2023.
7. 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 Laurie Bakri at the above address no later than 5:00 p.m., August 18, 2023.
8. 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 10 persons based on 875 CDL skills tests given in 2022 (those who are most affected by Entry-Level Driver's Training (ELDT)) and 122 persons in Prohibited status in the past year (those most affected by the Drug and Alcohol Clearinghouse (DACH)) for a total of 997 persons.
9. 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 that 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 6 above or may be made by completing a request form at any rules hearing held by the department.
10. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register.
11. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by e-mail on July 20, 2023.
12. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption, amendment, and repeal of the above-referenced rules will not significantly and directly impact small businesses.
The two main components of New Rule I directly impact applicants for a Montana commercial driver license (CDL) and their current or potential employers. Some of those employers would be considered small businesses. Although the rule has a direct bearing upon several individuals and businesses, the actual impact is minimized by existing industry standards and practices.
All operators of commercial motor vehicles had to receive some form of training to obtain a Montana commercial driver license. Typically, that would be provided by a motor carrier, trade school, or private truck driving school. The Entry-Level Driver Training (ELDT) component of the rule formalizes the requirements of that training. In fact, most of those training providers have been approved and are now on the ELDT national training provider registry. In addition, Senate Bill 47 directs the Montana Department of Transportation to implement an ELDT training program and to offer training to the public.
The drug and alcohol clearinghouse (DACH) component of the rule is an enhancement to existing motor carrier drug and alcohol testing requirements. Motor carriers have been testing their drivers under certain conditions since 2001. Employees who have a positive test must be removed from any safety sensitive duties, including operating a commercial motor vehicle. The new rule requires the Motor Vehicle Division of the Montana Department of Justice to query the clearing house for all CDL applicants and to refuse to license anyone with a prohibited status. Since the driver has already been prohibited from operating a commercial motor vehicle by the motor carrier, or future motor carriers, the enhanced rule has no additional impact on the driver.
/s/ DAVID ORTLEY /s/ AUSTIN KNUDSEN David Ortley Austin Knudsen Deputy Attorney General Attorney General Rule Reviewer Department of Justice
Certified to the Secretary of State July 25, 2023.
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