BEFORE THE DEPARTMENT OF TRANSPORTATION

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 18.8.519 pertaining to wreckers and tow vehicle requirements

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NOTICE OF AMENDMENT

 

TO:  All Concerned Persons

 

1.  On February 14, 2013, the Department of Transportation published MAR Notice No. 18-139 pertaining to the proposed amendment of the above-stated rule at page 204 of the 2013 Montana Administrative Register, Issue Number 3.

 

2.  The department has amended the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

 

18.8.519  WRECKERS AND/OR TOW VEHICLE REQUIREMENTS  

(1) remains as proposed.

            (2)  If the licensed gross weight or actual gross weight of the towed power unit does not exceed 26,000 pounds, and separating the a towed power unit combination would create a safety risk to the traveling public or to property on the roadway, a wrecker or tow vehicle may tow the vehicles or vehicle combination from the emergency scene or place of disablement on a public roadway to the operator's place of business or yard or suitable secure facility if it is within 100 miles of the emergency scene.

            (3)  If the licensed gross weight or actual gross weight of the towed power unit exceeds 26,000 pounds, and separating the combination would create a safety risk to the traveling public, the disabled vehicle combination may be removed intact from the emergency scene or place of disablement, but must be separated at the first place where the disabled vehicle combination can be safely reduced to a single unit without creating a safety risk to the traveling public.

(4) through (7) remain as proposed but are renumbered (3) through (6).

(8)(7)  MCS may recommend a 30-day or longer suspension from the towing program for violation of this rule.  MCS will report violations of this rule to the Department of Justice for appropriate action against the wrecker or tow vehicle operator.

 

AUTH:  61-10-155, MCA

IMP:  61-10-121, 61-10-122, 61-10-124, 61-10-125, 61-10-141, MCA

 

3.  The department has thoroughly considered the comments received.  A summary of the comments received and the department's responses are as follows:

 

COMMENT #1:  One comment was received questioning the wording of (2) on creating a safety risk to the traveling public.  The comment asked whether the language included the safety risk of the act of separating the units.  The comment further asked whether the owner or the disabled or wrecked unit was considered part of the traveling public or not if he was disabled and not traveling or moving.  The comment suggested adding the words "or property" to the subsection to protect both the people that are traveling and the safety and property of the person broken down or involved in an accident.

 

RESPONSE #1:  The department agrees with the comment to the extent that the rule must protect both the traveling public and any property along the roadway which may be at risk due to the actions of a tow vehicle.  The rule will be amended as shown above to include the phrase "or to property on the roadway" to clarify no safety risk to either travelers or property on the roadway should be created by a tow vehicle.

 

COMMENT # 2:  One comment was received stating (3) on towing power units which exceed 26,000 pounds gross weight created the same questions on safety risks.  The comment stated the existing wording requiring a combination over 26,000 pounds gross weight to be towed to the first place where the disabled combination can be safely reduced to a single unit should not be used.  The comment stated the units should be moved to the operator's place of business or a secured yard, since this part of the rule has been a source of contention between enforcing agencies and the towing industry for years.  The comment stated (3) should mirror (2) in allowing towing of a disabled unit to a secure yard or operator's place of business within 100 miles of the emergency site or place of disablement.

 

RESPONSE #2:  The department agrees with the comment and will delete (3) in its entirety, so that the wording in (2) on towing within 100 miles to the operator's business or yard or suitable secure facility will apply to all towing situations.  The rule will no longer distinguish between units under and over 26,000 pounds gross weight.

 

COMMENT #3:  One comment was received regarding (7) on tow vehicle operations during restricted travel hours or severe weather.  The comment stated that it is important to get disabled units off the highways even during weekends, holidays, and at night.  The comment stated the tow industry needs flexibility to get the casualties to the operators' yards and off the highways.  The comment suggested (7) should add wording such as "may tow to a secure yard or operator's place of business."

 

RESPONSE #3:  The department disagrees with the comment and noted (7) does allow for tow vehicle operation during restricted hours of daylight, weekends, and holidays.  The rule only imposes a destination condition during inclement weather, when severe or restricted driving conditions exist, when it is often not safe for the traveling public for tow units to try to reach the operator's yard.  The towing activity may cause an even greater hazard on the roads during severe or restricted driving conditions.  The proposed language requiring tow vehicles to travel only to "the first safe place the vehicles may be safely parked until the restricted or severe driving conditions have been removed" will remain for safety reasons.

 

COMMENT #4:  One comment was received stating (8) on MCS suspension recommendations for rule violation is badly worded.  The comment stated the subsection should be deleted.  The comment stated the Montana Tow Truck Act provides for suspensions when there is total willful disregard to the due process of law and gross unethical business practices, but any penalties are only imposed by the Tow Truck Complaint Resolution Committee, after a full hearing with the Attorney General's office (Department of Justice).  The comment stated (8) is the wrong method to promote professional towing practices and relationships as authorized emergency responders.  The comment further stated that the towing industry is regulated by both Montana Highway Patrol (Department of Justice) and Motor Carrier Services (Department of Transportation), thus common ground must be found so all parties work toward the same goals of safety for the public and removal of hazards from the roadways in the safest and quickest way possible.

 

RESPONSE #4:  The department considered the comment and acknowledges the Department of Justice is the appropriate agency for imposition of sanctions against tow vehicle operators.  The department will therefore amend the rule as shown above to state that MCS will report violations to the Department of Justice for appropriate action.

 

 

/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 April 1, 2013.