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Montana Administrative Register Notice 38-2-209 No. 24   12/23/2010    
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BEFORE THE DEPARTMENT OF PUBLIC SERVICE REGULATION

OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rule I (38.3.1505) pertaining to motor carrier authority recognition

 

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NOTICE OF ADOPTION

 

TO: All Concerned Persons

 

            1. On September 23, 2010, the Department of Public Service Regulation, Montana Public Service Commission published MAR Notice No. 38-2-209 pertaining to the proposed adoption of the above-stated rule at page 2179 of the 2010 Montana Administrative Register, Issue Number 18.

 

2. A public hearing was held on November 10, 2010, to consider the proposed adoption. Nineteen people offered verbal comments at the hearing. Two written comments were received by the November 10, 2010 deadline.

 

3. The department has adopted New Rule I (38.3.1505) as proposed.

 

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

 

            COMMENT NO. 1:  Jesse Rumble, Ron Kindsfather, Marc Rold representing the Montana Chauffeured Transportation Association (MCTA), and Kirk Hennefer commented limousine authorities allow a separate and distinct type of service. Jesse Rumble commented a certificate of public convenience and necessity without a limousine limitation should not be allowed to operate a limousine service.

 

RESPONSE:  The department acknowledges that a certificate of public convenience and necessity limited to limousine service allows a motor carrier to provide transportation service at rates not subject to approval by the department. Generally, certificates of public convenience and necessity contain three types of authority including: 1) authority that permits a specific activity; 2) authority that prohibits specific activity; and, 3) authority that permits general activity with no specific prohibitions. The department has no basis for inserting limitations in existing certificates of public convenience and necessity. The department is not persuaded a limitation on a certificate of public convenience and necessity that limits an authority to limousine type services is required to operate a limousine type service if an operator has an authority broad enough to include limousine type services.

 

            COMMENT NO. 2:  Jesse Rumble and Marc Rold representing the MCTA commented the adoption of this rule would grant additional operating authority to motor carriers with passenger certificates of public convenience and necessity that are not limited to either a taxi or limousine service.

 

RESPONSE:  The adoption of New Rule I does not create new certificates of public convenience and necessity or grant any additional authority to holders of current certificates of public convenience and necessity. The rule addresses authorities that were previously granted that did not place a limitation on the type of service provided. The rule clarifies how the authorities should be interpreted for administrative and enforcement purposes.

 

COMMENT NO. 3:  Jesse Rumble and Marc Rold representing the MCTA commented the department should only grant authority to the extent need is established and the proposed rule grants additional authority to passenger motor carriers without the burden of proof necessary to establish need. 

 

RESPONSE:  The department grants certificates of public convenience and necessity based on the need proven by a motor carrier applying for a certificate of public convenience and necessity and if applicable, testimony taken at a public hearing. The language in the certificate of public convenience and necessity issued to a motor carrier reflects the department's findings. The department is not persuaded additional authority is granted by adopting the proposed rule.

 

COMMENT NO. 4: Jesse Rumble and Marc Rold (individually), and Marc Rold representing MCTA commented the department has not historically allowed limousines to protest or intervene in requests for new certificates of public convenience and necessity that authorize taxi service.

 

RESPONSE: The department has not identified an occurrence where a written protest or intervention was rejected by the department where the type of passenger service requested on the certificate of public convenience and necessity was different from the protestant's authority.

 

COMMENT NO. 5:  Al Guay, Bob Young, Vance Vanderpan, Carrie Pintar, Dan Martin, Mike Hruska, Sue Young, Markus Kirchmayr, Dave Jackson, Ryan Kulesza, and KARST Stage, Inc. commented existing certificates of public convenience and necessity should not be restricted retroactively and suggested future certificates of public convenience and necessity be issued with language that clarifies the type of service provided.

 

RESPONSE:  The department agrees that existing certificates of public convenience and necessity should not be restricted retroactively as noted in the response to Comment No. 1.

 

COMMENT NO. 6: Doug Mood commented certificates of public convenience and necessity have an inherent monetary value based on the operating authority granted by the certificate of public convenience and necessity and the ability of a motor carrier to transfer or lease a certificate of public convenience and necessity. Further, Doug Mood commented the department should not adopt a rule that would disrupt the values of the existing certificates.

 

RESPONSE:  The department understands the existing certificates of public convenience and necessity have an inherent monetary value. The proposed rule clarifies the scope of authority on existing certificates thereby clarifying the value of the existing certificates.

 

COMMENT NO. 7:  Ron Kindsfather commented the department should define the terms taxi and limousine based on the type of service each provides.

 

RESPONSE:  Defining the terms taxi and limousine are beyond the scope of this proposed rule. However, the department may consider adopting rules that define terms such as taxi and limousine in the future.

 

COMMENT NO. 8:  Kirk Hennefer and Al Guay commented the department should consider dormancy and either cancel or restrict existing certificates of public convenience and necessity based on whether a motor carrier is fully utilizing their operating authority.

 

RESPONSE:  Dormancy as it relates to existing certificates of public convenience and necessity is beyond the scope of the proposed rule.

 

 

            /s/ Al Brogan                                                /s/ Greg Jergeson

            Al Brogan                                                      Greg Jergeson, Chairman

            Rule Reviewer                                             Department of Public Service Regulation

                                                                       

Certified to the Secretary of State, December 13, 2010.

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