Administrative Rule Review Report  #AR08-012

Legislative Service Office

28-Jan-08

AGENCY: Department of Transportation.

DATE SUBMITTED: January 25, 2008.

SUBJECT: Chapter 1, Motor Carriers.

NATURE OF RULES:                     Legislative and Procedural.

STATUTORY AUTHORITY:         W.S. 31-18-104(a)(vi).

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION

SUBMITTED BY THE AGENCY TO LSO: 

Apparently complete to date.  Numerous public comments were received responding to the notice of intent to adopt rules.  Some of these comments were incorporated into the final adopted rules. None of the incorporated comments appear to substantially alter the rules beyond the original stated intent of the proposed rule changes.

SUMMARY OF RULES:

The rule changes are contained in Wyoming Department of Transportation (WyDoT) Rules and Regulations, Chapter 1 (Motor Carriers).  The rule changes will be summarized by section in this rule review.  Non-substantive changes throughout Chapter 1 and the Appendix to Chapter 1 have not been noted in this review.

Section 2 (Definitions), the definition of "Interstate commerce" is amended to include "or between two places in a state as part of trade, traffic, or transportation origination or terminating outside the state or the United States.

Section 4 (Communications, Addresses, and Notices) is amended to require that all applications, written communications and documents shall be addressed to the " Wyoming Department of Transportation, Motor Vehicle Services Program, Regulatory Section".

Section 11 (Towing and Recovery Vehicles) is amended by narrowing the classification of towing vehicles inspected by the Wyoming Highway Patrol from 4 classes to 3 classes of towing and recovery vehicles.  The proposed rule changes eliminate an intermediate classification of towing vehicles that service vehicles from 10,001 to 18,000 pounds gross vehicle weight (formally Class "B" towing vehicles).  The proposed classifications of towing and recovery vehicles are:

            Class "A" – not to exceed 10,001 pounds gross vehicle weight for vehicles serviced.

            Class "B" – not to exceed 26,000 pounds gross vehicle weight for vehicle serviced.

             Class "C" – service vehicles in excess of 26,000 pounds gross vehicle weight and shall perform all services authorized by any other class of wrecker.

Class "A" towing and recovery vehicles are further amended to require a boom capacity of not less than 8,000 pounds, a total winching capacity of not less than 8,000 pounds, a tow cradle, tow plate or tow sling with a lifting rating of at least 3,500 pounds, a tow rating of at least 7,500 pounds and dual rear wheels and tires or super single tires and wheels. If a rollback vehicle is used on a Class "A" towing and recovery vehicle it shall remain within the manufacturer's ratings for wheel lift/tow specifications, not exceed the allowable loaded weight as indicated by the manufacturer (gross vehicle weight rating) and have a winch capacity of not less than 8,000 pounds equipped with not less than 3/8-inch independent wire cable.  Class "B" vehicles now include those vehicles with a gross vehicle weight ratings of at least 20,000 pounds and all other vehicle characteristics that were previously required of Class "C" towing vehicles. If a rollback vehicle is used on a Class "B" towing and recovery vehicle it shall remain within the manufacturer's ratings for wheel lift/tow specifications, not exceed the allowable loaded weight as indicated by the manufacturer (gross vehicle weight rating) and have a winch capacity of not less than 8,000 pounds equipped with not less than 3/8-inch independent wire cable.  Class "C" towing and recovery vehicles are now required to have all of the vehicle characteristics that were previously required of Class "D" towing vehicles.  If a trailer designed for use as a recovery and removal vehicle is employed it  as a Class "C" vehicle it shall remain within the manufacturer's rating for wheel lift/tow specifications, not exceed the allowable loaded weight as indicated by the manufacturer, have a power unit that meets the lighting and safety requirements outlined in the "Lighting Requirement" subsection of this section and the emergency lighting shall be covered when not engaged in a recovery or removal operation.  The classification of  Class "D"  towing and recovery vehicles has been eliminated.  Section 11, Subsection (d) (Additional Equipment Requirements) is amended to require tow vehicles be equipped with all safety equipment prescribed by the U.S. Department of Transportation Safety Regulations within C.F.R. Title 49 as adopted for commercial vehicles by WYDOT.  Subsection (e) (Restrictions) requires, effective November 24, 2008, that all persons engaged in towing and recovery within the rights-of-way of federal-aid highways wear safety apparel as required by 23 Code of Federal Regulations (CFR) Part 634.  Subsection (g) (Inspection) is amended to require an annual inspection of a tow vehicle and its equipment between January 1 and June 30.

 FINDINGS:

Chapter 1, Section 11(e) incorporates by reference the requirement that persons engaged in towing and recovery within the rights-of-way of federal-aid highways wear safety apparel as required by 23 Code of Federal Regulations Part 634 .  Incorporation by reference is authorized under Wyoming law.  The Administrative Procedure Act at W.S. 16-3-103(h), provides in part:

(h)  An agency may incorporate, by reference in its rules and without publishing the incorporated matter in full, all or any part of a code, standard, rule or regulation that has been adopted by an agency of the United States or of this state, another state or by a nationally recognized organization or association, provided:

(ii)  The reference in the rules of the incorporating agency fully identifies the incorporated matter by location, date and otherwise, and states that the rule does not include any later amendments or editions of the incorporated matter;

            (iv)  The incorporating agency maintains and makes available for public inspection a copy of the incorporated matter and the rules of the incorporating agency state where copies of the incorporated matter are available at cost from the incorporating agency;

Here WyDoT's Section 11(e) specifies that the CFR part being incorporated is effective November 24, 2008, however it does not contain a "no later amendment" provision as required by W.S.16-3-103(h)(ii). Section 11(e) states where incorporated material may be found, but does not state that incorporated materials are available at cost from WyDoT.

STAFF RECOMMENDATION:

The APA requires only substantial procedural compliance.  While failing to strictly comply, Chapter 1, Section 11(e) of the rules is considered by LSO to meet the substantial compliance requirement of the Wyoming Administrative Procedure Act, W.S. 16-3-101(c).  Even though Chapter 1, Section 11(e) does not state that no further amendments will be incorporated, it does specify that the standards will be effective as of a specified date.  Also Section 11(e) states where the incorporated material can be located, even though the rules do not state that the incorporated materials are available at cost from WyDoT.

STAFF RECOMMENDATION:

The recommendation is that Council request that the Governor ensure the rules are amended before filing with the Secretary of State, by including the statements required by the statutory provisions in bold above, in brackets.  Making these purely technical amendments will ensure the agency and the public are aware of the statutory requirements, and that the incorporated material will be available at cost as from WyDoT, as required by law.  If the rules are not so amended, the recommendation is for the Governor to not approve the rules and to request that WyDoT readopt the rules, addressing the issues noted. 

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Matthew D. Obrecht

Staff Attorney

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Dan J. Pauli

Director