TITLE 17. TRANSPORTATION

CHAPTER 5. DEPARTMENT OF TRANSPORTATION

COMMERCIAL PROGRAMS

Authorizing statute: A.R.S. 28-366

Implementing statutes: A.R.S. 28-5204 and 28-5235

July 10, 2002

Notice of Rulemaking Docket Opening: 8 A.A.R. 622, February 8, 2002

Notice of Proposed Rulemaking: 8 A.A.R. 895, March 8, 2002

Please visit the ADOT web site to track progress of this rule and any other agency rulemaking matters at www.dot.state.az.us/about/rules/index.htm.

MVD engages in this rulemaking to incorporate sections of the 2001 edition of the 49 CFR by reference into Arizona Motor Carrier Safety and Hazardous Materials Transportation administrative rules. For purposes of clarity, general definitions are moved to a new Section, R17-5-201, created just for definitions.

This rulemaking also introduces two amendments:

1. In R17-5-203(B)(3), an additional provision redefines Commercial Motor Vehicle to include operation for interstate commerce with a gross vehicle weight greater than 10,001 pounds. Compliance to federal regulations is already required for this provision under 49 CFR 390.5; but statewide law enforcement wishes specifically to codify the provision in rule language to reinforce compliance with Motor Carrier Safety Assistance Program "MCSAP" requirements on the state level and ensure receipt of MCSAP grant funding.

2. In R17-5-208(6)(a), language is deleted to help reduce confusion concerning medical reporting requirements for insulin dependent diabetics applying for a CDL under the waiver pilot program. The applicant must report hypoglycemic insulin reactions that occurred within a 12-month period before applying for a CDL. The Medical Review Program of MVD has maintained this standard since the initiation of the pilot program, but has encountered repeated misunderstanding of actual requirements by prospective applicants and reporting physicians.

Other minor amendments are made to reflect modifications in 49 CFR 2001 section naming and numbering. This rulemaking does not arise from a five-year review but is an annual update.

None

Not applicable

The economic impact of this rulemaking is negligible. No substantial changes are introduced since the last rulemaking, effective July 12, 2001. The new Section and amendments in this rulemaking provide minimal benefit to the agency and regulated persons in reduction of confusion and employee time required to clarify regulatory provisions.

One minor correction was made in R17-5-209(A)(1)(a) to bring rule language into agreement with the Subchapter A title according to the 2001 49 CFR. Other minor grammatical, sentence structure, and syntactical changes were made upon recommendations by the Governor's Regulatory Review Council staff.

The agency received no comments on this rulemaking.

None

In R17-5-202, subsection (A):

49 CFR Parts 40, 382, 390, 391, 392, 393, 395, 396, 397, and 399, published October 1, 2001.

In R17-5-209, subsection (A):

49 CFR Parts 107, 171,172,173,177,178, and 180, published October 1, 2001.

No

TITLE 17. TRANSPORTATION

CHAPTER 5. DEPARTMENT OF TRANSPORTATION

COMMERCIAL PROGRAMS

ARTICLE 2. MOTOR CARRIERS

Section

R17-5-201. Reserved Definitions

R17-5-202. Motor Carrier Safety: Incorporation of Federal Regulations; Definitions; Application

R17-5-203. Motor Carrier Safety: 49 CFR 390 - Federal Motor Carrier Safety Regulations; General Applicability and Definitions; General Requirements and Information

R17-5-205. Motor Carrier Safety: 49 CFR 382 - Controlled Substances and Alcohol Use and Testing

R17-5-208. Insulin-Dependent dependent Commercial Driver License Waiver Pilot Study Program

R17-5-209. Hazardous Materials Transportation

R17-5-210. Definitions Repealed

ARTICLE 2. MOTOR CARRIERS

R17-5-201. Reserved Definitions

A. The following definitions apply to this Article unless context indicates otherwise:

4. "Danger to public safety" means any condition of a transporter likely to result in serious peril to the public if not discontinued immediately.

5. "Division" or "MVD" means the Motor Vehicle Division, Arizona Department of Transportation.

6. "Division Director" means the Assistant Director of the Arizona Department of Transportation for the Motor Vehicle Division or the Assistant Director's designated agent.

7. "Hearing Office" means the Arizona Department of Transportation, Motor Vehicle Division, Executive Hearing Office.

8. "Transporter" means any person, driver, motor carrier, shipper, manufacturer, or motor vehicle, including any motor vehicle transporting a hazardous material, hazardous substance, or hazardous waste, subject to this Article and A.R.S. Title 28, Chapter 14.

9. "Violation" means any conduct, act, or failure to act required or prohibited under this Article and A.R.S. Title 28, Chapter 14.

B. Any definition prescribed under A.R.S. 28-5201 also applies to this Article.

R17-5-202. Motor Carrier Safety: Incorporation of Federal Regulations; Definitions; Application

A. The Division incorporates by reference 49 CFR 40, 382, 390, 391, 392, 393, 395, 396, 397, and 399 published October 1, 2000, 2001, and no later amendments or editions, and with the changes described in R17-5-202 through R17-5-508. Copies of the incorporated material are on file with the Federal Motor Carrier Safety Administration, the Division, and the Office of the Secretary of State, as amended by R17-5-202 through R17-5-208.

C.B.The regulations of 49 CFR, incorporated by subsection (A), apply as amended by R17-5-203 through R17-5-208 to:

1. A motor carrier as defined in A.R.S. 28-5201 except a motor carrier transporting passengers for hire in a motor vehicle with a design capacity of 6 six or fewer persons.

2. A vehicle owned or operated by the state, a political subdivision, or a public authority of the state that is used to transport hazardous materials in an amount requiring the vehicle to be marked or placarded as prescribed in R17-5-209.

R17-5-203. Motor Carrier Safety: 49 CFR 390 - Federal Motor Carrier Safety Regulations; General Applicability and Definitions; General Requirements and Information

A. 49 CFR 390.3 General applicability is amended as follows:

1. Paragraph (a) is amended to read: Regulations incorporated in this Section are applicable to all motor carriers operating in Arizona and any vehicle owned or operated by the state, a political subdivision, or a state public authority that is used to transport a hazardous material in an amount requiring the vehicle to be marked or placarded as prescribed in R17-5-209.

2. Paragraph (b) is amended to read: A motor carrier driver domiciled in Arizona who operates a commercial motor vehicle defined in A.R.S. 28-3001 shall comply with the requirements of A.R.S. Title 28, Chapter 8 and any rule made under that Chapter.

3. Paragraph (c) is amended to read: A motor carrier operating in Arizona in furtherance of a commercial enterprise, shall comply with the financial responsibility requirement specified in A.R.S. Title 28, Chapter 9, Article 2, and 49 CFR 387.

B. 49 CFR 390.5 Definitions. The definitions listed in 49 CFR 390.5 are amended as follows:

1. If the term "Commercial Motor Vehicle" or "CMV" is used in reference to the controlled substance substances and alcohol use and testing requirement of 49 CFR 382, the term has the meaning prescribed in 49 CFR 382.107.

2. If the term "Commercial Motor Vehicle" or "CMV" is used in reference to the licensing requirements prescribed under A.R.S. 28-3223, the term has the meaning prescribed under A.R.S. 28-3001.

3. If the term "Commercial Motor Vehicle" or "CMV" is not used in reference to the controlled substance substances and alcohol use and testing requirement of 49 CFR 382 or the licensing requirement prescribed under A.R.S. 28-3223, the term means a self-propelled, motor-driven vehicle or vehicle combination, used on a public highway in this state in furtherance of a commercial enterprise that:

a. Has a gross vehicle weight rating (GVWR) as a single vehicle or a gross combination weight rating (GCWR) of 18,001 pounds or more for purposes of intrastate commerce;

b. Transports passengers for hire and has a design capacity of 7 seven or more persons; or

c. Transports a hazardous material in an amount requiring marking or placarding as prescribed in R17-4-436 R17- 5 -209; and

d. Is not an intrastate-operating tow truck that has a GVWR up to 26,000 pounds, but a tow truck operator remains subject to all other provisions prescribed under 49 CFR 391.41, 391.43, 391.45, 391.47, and 391.49.; and e. Operates for purposes of interstate commerce with a GVWR of greater than 10,001 pounds.

4. "Exempt intracity zone" is deleted from R17-5-203 through R17-5-206 and has no application in this Section. R17-5- 203 through R17-5-206.

5. "For-hire motor carrier," "private motor carrier", "private motor carrier of passengers (business)," and "private motor carrier of passengers (nonbusiness)" are deleted from R17-5-203 through R17-5-206 and the term "motor carrier" is substituted.

6. "Gross combination weight rating (GCWR)" has the meaning prescribed under 49 CFR 390.5, Definitions.

7.6. "Gross vehicle weight rating (GVWR)" has the meaning prescribed under 49 CFR 390.5, Definitions, is amended by adding: In the absence of a value specified by the manufacturer and the vehicle identification number, law enforcement shall use a vehicle's actual gross weight or declared gross weight to determine the GVWR.

8.7. "Regional Director of Motor Carriers" means the Division Director of the Arizona Department of Transportation, Motor Vehicle Division.

9.8. "Special agent" means an officer or agent of the Department of Public Safety, the Division, or a political subdivision, who is trained and certified by the Department of Public Safety to enforce Arizona's Motor Carrier Safety requirements.

10.9."State" means a state of the United States or the District of Columbia.

11.10."Tow truck" has the meaning prescribed under A.A.C. R13-3-101.

C. 49 CFR 390.15 Assistance in investigations and special studies. Paragraph (a) is amended to read: A motor carrier shall make all records and information pertaining to an accident available to a special agent upon request or as part of any inquiry within the time the request or inquiry specifies. A motor carrier shall give a special agent all reasonable assistance in the investigation of any accident including providing a full, true, and correct answer to any question of the inquiry.

D. 49 CFR 390.21 Marking of CMVs. Paragraph (a) is amended to read: This Section applies to all motor carrier vehicles operated in Arizona. A motor carrier not subject to U.S. Department of Transportation marking requirements shall mark its vehicle with the:

1. Company name, or

2. Business trade name and

3. City and state.

E. 49 CFR 390.23 Relief from regulations.

1. Paragraph (a) is amended to read: Regulations contained in 49 CFR 390 through 397 do not apply to a motor carrier that:

a. Is exempt from federal jurisdiction, and

b. Operates a commercial motor vehicle used or designated to provide relief during an emergency.

2. Paragraphs (a)(1), (a)(1)(A), (a)(1)(B), and (a)(1)(B)(ii) (a)(1)(i), (a)(1)(i)(A), (a)(1)(i)(B), and (a)(1)(ii) are deleted.

3. Paragraph (a)(2)(A) (a)(2)(i)(A) is amended as follows: An emergency has been declared by a federal, state, or local government official having authority to declare an emergency; and

4. Paragraph (a)(2)(B) (a)(2)(i)(B) is amended as follows: The Arizona Department of Public Safety Commercial Vehicle Enforcement Bureau determines a local emergency exists that justifies an exemption from any or all of these Parts. If the Arizona Department of Public Safety Commercial Vehicle Enforcement Bureau determines relief from these regulations is necessary to provide vital service to the public, relief shall be granted with any restrictions the Arizona Department of Public Safety considers necessary.

5. Paragraph (b) is amended as follows: "Interstate commerce" as used in paragraph (b) means engagement in a commercial enterprise.

F. 49 CFR 390.25 Extension of relief from regulations - emergencies is amended as follows: A motor carrier seeking to extend a period of relief from these regulations shall obtain approval from the Arizona Department of Public Safety Commercial Vehicle Enforcement Bureau. The motor carrier shall give full details of the additional relief requested. The Arizona Department of Public Safety shall observe time limits for emergency relief from regulations as prescribed under 49 CFR 390.23(a), but may extend a period of relief after considering:

1. Severity of the emergency,

2. Nature of relief services to be provided by the motor carrier, and

3. Other restrictions that may be necessary.

G. 49 CFR 390.27 Locations of motor carrier safety service centers is amended to read: A motor carrier requesting relief from these regulations shall contact the Arizona Department of Public Safety, Commercial Vehicle Enforcement Bureau, Telephone (602) 223-2522.

R17-5-205. Motor Carrier Safety: 49 CFR 382 - Controlled Substances and Alcohol Use and Testing

A. 49 CFR 382.103 Applicability. Paragraph (a)(1) is amended to read: The commercial driver license requirements of the state of Arizona.

B. 49 CFR 382.115 Starting date for testing programs. Paragraph (a) is amended to read: The controlled substance substances and alcohol use and testing requirements commence for all motor carriers on the date this Section goes into effect.

C. Paragraphs (b) through (d) are Paragraph (b) is deleted.

R17-5-208. Insulin-Dependent dependent Commercial Driver License Waiver Pilot Study Program

The Division shall create a pilot study program for insulin-dependent diabetics to process, monitor, and evaluate the feasibility of establishing a waiver program for intrastate drivers who are disqualified as prescribed in the provisions of 49 CFR 391.41 (b)(3), but who are otherwise qualified. All requirements of R17-5-204 apply except subsections (B)(3) and (B)(4).

1. The Medical Review Officer, authorized to approve or deny waiver applications, shall administer the pilot study program.

2. The study program begins on the effective date of this rule and terminates 2 two years from that date.

3. All waivers issued through the study program terminate upon the expiration of the study program.

4. The Division Director may extend the study or establish a permanent waiver process after review of the study program results.

5. An insulin-dependent diabetic may apply for a waiver, restricted to the state of Arizona, for participating in the 2 two-year pilot study if:

a. The applicant submits blood glucose logs to the an endocrinologist or medical examiner at an annual examination or at any time as directed by the medical review section.

b. The applicant has a driving record meeting the minimum requirements of safe driving as specified in applicable federal and state safety regulations and has no serious traffic violation as described under A.R.S. 28-3312(E), no period of driver disqualification, and no reportable accident for the 3 three-year period before submitting the waiver application.

c. A separate signed statement from an examining ophthalmologist is submitted that the applicant has been examined and does not have unstable proliferative diabetic retinopathy, unstable advancing disease of blood vessels in the retina, and has stable acuity of at least 20/40 Snellen in each eye, with or without corrective lenses.

6. An insulin-dependent diabetic commercial driver license applicant shall provide:

a. A board-certified or board-eligible endocrinologist with a complete medical history including the date insulin use began, all hospitalization reports, consultation notes for diagnostic examinations, special studies pertaining to the diabetes and follow-up reports, and reports of any hypoglycemic insulin reactions within the prior 12 months or from the date the applicant started using insulin, whichever is later.

b. An examination by a board-certified or board-eligible endocrinologist. The complete medical examination shall consist of a comprehensive evaluation of the applicant's medical history and current status, including a review of:

i. Fasting blood studies glucose, glycosylated hemoglobin/Hb Alc I including lab reference page and urinalysis performed during the last 6 six months; and

ii. Insulin dosages and types, diet utilized for control, and any significant factors such as smoking, alcohol use, and other medications, or drugs taken.

c. A statement prepared and signed by the examining endocrinologist whose status as board-certified or board-eligible is indicated. The signed statement shall include separate declarations indicating the following medical determinations:

i. The endocrinologist is familiar with the applicant's medical history for the past 12 months whether through actual treatment over that time or through consultation with a physician who has treated the applicant during that time.

ii. The applicant is free from insulin reactions including severe hypoglycemia and hypoglycemia awareness, and has had no more than 1 one documented hypoglycemic reaction per month in the previous 12 months or from the date the applicant started using insulin injections, whichever is later.

iii. The applicant does not have severe hypoglycemia episodes of altered consciousness requiring the assistance of another person to regain control.

iv. The applicant does not have hypoglycemia unawareness or the inability to recognize the early symptoms of hypoglycemia such as sweating, anxiety, forceful heartbeat, and light-headedness.

v. The applicant's diabetic condition will not adversely affect the applicant's ability to operate a commercial motor vehicle; and

vi. The applicant is educated in diabetes and its management and is thoroughly informed of and understands procedures to follow to monitor and manage the applicant's diabetes and procedures to follow if complications arise.

d. An insulin-dependent applicant for a commercial driver license waiver shall meet the following requirements for the last 3 three years before application:

i. Have a driving record that contains no suspension or revocation of the applicant's driver license for the operation of any motor vehicle, including personal vehicles, except a suspension or revocation due to nonpayment of fines;

ii. Have no involvement in an accident as defined in 49 CFR 390.5 for which the applicant received a citation for a moving traffic violation while operating a commercial motor vehicle;

iii. Have no conviction for a disqualifying offense described in 49 CFR 383.51, or more than 1 one serious traffic violation as described in 49 CFR 383.51 and A.R.S. 28-3312(E) while operating a commercial motor vehicle; and

iv. Have no more than 2 two convictions for any non-serious moving traffic violations while operating a commercial motor vehicle.

e. The applicant shall immediately report any arrest, citation, or conviction to the MVD Medical Review Program. Failure to do so may result in denial or rescission of the waiver.

R17-5-209. Hazardous Materials Transportation

A. Incorporation of federal regulations.

1. The Motor Vehicle Division incorporates the following portions of the Federal Hazardous Materials Regulations by reference. Materials incorporated by reference are on file in the Secretary of State's Office. The incorporated Hazardous Materials Regulations are published in 49 CFR Transportation, Subtitle B - Other Regulations Relating to Transportation, Chapter I - Research and Special Programs Administration, Department of Transportation:

a. Subchapter A - Hazardous Materials and Oil Transportation; Part 107 - Hazardous materials program procedures; and

b. Subchapter C - Hazardous Materials Regulations; Parts:

i. 171 - General information, regulations, and definitions;

ii. 172 - Hazardous materials table, special provisions, hazardous materials communications, emergency response information, and training requirements;

iii. 173 - Shippers - general requirements for shipments and packagings;

iv. 177 - Carriage by public highway;

v. 178 - Specifications for packagings; and

vi. 180 - Continuing qualification and maintenance of packagings.

2. These parts are incorporated as printed in the October 1, 2000 2001 edition, and those sections of the October 1, 1991 edition authorized for use under the transitional provisions of Section 171.14 of the October 1, 2000 2001 edition.

B. Application and exceptions.

1. Application.

a. Regulations incorporated in subsection (A) apply as amended by subsection (C) to motor carriers, shippers, and manufacturers as defined in A.R.S. 28-5201.

b. Regulations incorporated in subsection (A) also apply to any vehicle owned or operated by the state, a political subdivision, or a state public authority, used to transport a hazardous material, including hazardous substances and hazardous waste.

2. Exceptions. An authorized emergency vehicle, as defined in A.R.S. 28-101, is excepted from the provisions of this Section.

C. Amendments. The following sections of the Federal Hazardous Materials Regulations, incorporated under subsection (A), are amended as follows:

1. Part 171. General information, regulations, and definitions.

a. Section 171.1 Purpose and scope. Paragraph (a) is amended to read: "The transportation of hazardous materials by and their offering to: (1) interstate, intrastate, and foreign motor carriers; and (2) vehicles owned or operated by the state, a political subdivision or a state public authority, which are used to transport hazardous material."

b. Section 171.8 Definitions and abbreviations. Section 171.8 is amended by revising the definitions for "Carrier," "Hazmat employer," and "Person," and adding a definition for "Highway" as follows: "'Carrier' means a person engaged in the transportation of passengers or property by highway as a common, contract, or private carrier and also includes the state, a political subdivision, and a state public authority engaged in the transportation of hazardous material." "'Hazmat employer' means a person who uses 1 one or more of its employees in connection with: transporting hazardous material; causing hazardous material to be transported or shipped; or representing, marking, certifying, selling, offering, reconditioning, testing, repairing, or modifying containers, drums, or packagings as qualified for use in the transportation of hazardous material. This term includes motor carriers, shippers, and manufacturers defined in A.R.S. 28-5201 and includes the state, political subdivisions, and state public authorities."

"'Highway' means a public highway defined in A.R.S. 28-5201."

"'Person' has the same meaning defined as in A.R.S. 28-5201."

2. Part 172 - Hazardous materials table, special provisions, hazardous materials communications, emergency response information, and training requirements.

Section 172.3 Applicability.

Paragraph (a)(2) is amended to read:

"Each motor carrier that transports hazardous materials, and each state agency, political subdivision, and state public authority that transports hazardous material by highway."

3. Part 177. Carriage by public highway.

a. Section 177.800 Purpose and scope of this part and responsibility for compliance and training. Paragraph (a) is amended as follows: The In paragraph (a), the phrase "by private, common, or contract carriers by motor vehicle" is amended to read, "by a motor carrier operating in Arizona, a state agency, a political subdivision, or a state public authority that transports hazardous material by highway."

b. Section 177.802 Inspection. Section 177.802 is amended to read: "Records, equipment, packagings, and containers under the control of a motor carrier or other persons subject to this part, affecting safety in transportation of hazardous material by motor vehicle, must be made available for examination and inspection by an authorized representative of the Department as prescribed in A.R.S. 28-5204 and 28-5231."

R17-5-210. Definitions Repealed

A. The following definitions apply to R17 -5-211 and R17-5-212:

a. R17-5-202 through R17-5-209; and

b. A.R.S. Title 28, Chapter 14.

2. "Danger to public safety" means any condition of a transporter likely to result in serious peril to the public if not discontinued immediately.

B. Any definition prescribed under A.R.S. 28-5201 also applies to R17-5-211 and R17 -5-212.