BEFORE THE DEPARTMENT OF TRANSPORTATION

OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rules I through VIII pertaining to Fuel Tax Bridge and Road Safety and Accountability Program

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NOTICE OF ADOPTION

 

TO: All Concerned Persons

 

1. On October 13, 2017, the Department of Transportation published MAR Notice No. 18-165 pertaining to the proposed adoption of the above-stated rules at page 1717 of the 2017 Montana Administrative Register, Issue Number 19.

 

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

 

NEW RULE I (18.16.101)  DEFINITIONS (1) through (15) remain as proposed.

 

AUTH: 15-70-104, MCA

IMP: Ch. 267, Sections 2, 3, and 5, L. 2017 15-70-127, 15-70-130, 60-2-225, MCA

 

NEW RULE II (18.16.102)  ELIGIBILITY – ALLOCATION – MATCHING FUNDS (1) through (5) remain as proposed.

 

AUTH: 15-70-104, MCA

IMP: Ch. 267, Sections 2 and 3, L. 2017 15-70-127, 15-70-130, MCA

 

NEW RULE III (18.16.103)  DISTRIBUTION TERMS AND CONDITIONS 

(1) through (6) remain as proposed.

 

AUTH: 15-70-104, MCA

IMP: Ch. 267, Sections 2, 3, and 5, L. 2017 15-70-127, 15-70-130, 60-2-225, MCA

 

NEW RULE IV (18.16.104)  BARSAA MATCH FUNDS – ADMINISTRATION OF FEDERAL-AID PROJECTS (1) and (2) remain as proposed.

 

AUTH:  15-70-104, MCA

IMP:  Ch. 267, Sec. 3, L. 2017 15-70-130, MCA

 

 

NEW RULE V (18.16.105)  DISTRIBUTION REQUEST PROCESS – DEADLINES (1) through (6) remain as proposed.

 

AUTH:  15-70-104, MCA

IMP:  Ch. 267, Sections 2 and 3, L. 2017 15-70-127, 15-70-130, MCA

 

NEW RULE VI (18.16.106)  RESTRICTED ASSET ACCOUNT – OBLIGATION OF FUNDS (1) through (3) remain as proposed.

 

AUTH: 15-70-104, MCA

IMP: Ch. 267, Sections 2 and 3, L. 2017 15-70-127, 15-70-130, MCA

 

NEW RULE VII (18.16.107)  RESERVATION OF ALLOCATED FUNDS 

(1) through (7) remain as proposed.

 

AUTH:  15-70-104, MCA

IMP: Ch. 267, Sections 2 and 3, L. 2017 15-70-127, 15-70-130, MCA

 

NEW RULE VIII (18.16.108)  ANNUAL REPORT (1) remains as proposed.

 

AUTH:  15-70-104, MCA

IMP: Ch. 267, Sec. 5, L. 2017 60-2-225, 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 stating the word "road" should be defined as it applies to the rules. The comment asked whether the rules allow for improvements to all types of transportation facilities within the right-of-way, such as sidewalks, transit facilities, paths, lighting, stormwater facilities, etc. The comment stated the rules should apply to these types of facilities.

 

RESPONSE #1: The department notes HB 473, Section 3 (15-70-130, MCA) and New Rule III(2) (ARM 18.16.103) both state all BARSAA funds allocated under the program must be used for construction, reconstruction, maintenance, and repair of rural roads, city or town streets and alleys, and bridge projects; or roads and streets a local government has the responsibility to maintain; or as a match for federal funds for these projects. Therefore, under legislative intent and statutory language, the BARSAA funds must be used for projects in which the primary improvement is to the roadway or bridge, for safety reasons, and not for purchase of capital equipment or "other" right-of-way facilities such as shared use paths, sidewalks, lighting, etc. (transit facilities are not eligible at all under the Constitution as a use of fuel tax). If the primary road or bridge project includes associated right-of-way facilities such as these, they may qualify for funding, but will not qualify as a stand-alone project.

 

COMMENT #2: One comment was received stating New Rule V(3) (ARM 18.16.105) states "Each distribution request must be complete and accompanied by all required supplement materials." The comment stated there is no explanation of what these materials are. The comment requested additional detail as to what MDT will require to be submitted as part of the request for gas-tax funds.

 

RESPONSE #2: The department notes HB 473 (15-70-130, MCA) and New Rule V (18.16.105) both set forth the requirements for a local government's distribution request. The request must include the amount of funding sought, a description of the project, and a copy of an adopted resolution by the local government. The supplement materials therefore consist of the local government resolution. The department's website BARSAA distribution request page will request all statutorily required information, and will require the attachment of the resolution as supplemental material.

 

 

/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 November 27, 2017.