ARTICLE 2. MOTOR CARRIERS
R17-5-201. Definitions

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

1. "Audit" means any inspection of a transporter's motor vehicle, equipment, books, or records to determine compliance with this Article and A.R.S. Title 28, Chapter 14.
2 "Co-applicant" means an employer or potential employer.
3. "Danger to public safety" means any condition of a transporter likely to result in serious peril to the public if not discontinued immediately.
4. "Division" means the Motor Vehicle Division, Arizona Department of Transportation.
5. "Director" means the Assistant Director of the Arizona Department of Transportation for the Motor Vehicle Division or the Assistant Director's designated agent.
6. "Hearing Office" means the Arizona Department of Transportation, Motor Vehicle Division, Executive Hearing Office.
7. "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.

Historical Note
New Section made by final rulemaking at 8 A.A.R. 3249, effective July 10, 2002 (Supp. 02-3). Amended by final rulemaking at 14 A.A.R. 3797, effective November 8, 2008 (Supp. 08-3)..

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

A. The Division incorporates by reference 49 CFR 40, 382, 390, 391, 392, 393, 395, 396, 397, and 399, published October 1, 2005, and no later amendments or editions, as amended under R17-5-202 through R17-5-207. The incorporated material is available from the U.S. Government Printing Office, Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-0001, and is on file with the Division.

B. The Sections of 49 CFR that are incorporated in subsection (A) apply as amended under R17-5-203 through R17-5-207 to all intrastate and interstate motor carriers operating in Arizona.

 

Historical Note
New Section recodified from R17-4-435 at 7 A.A.R. 3483, effective July 20, 2001 (Supp. 01-3). Amended by final rulemaking at 8 A.A.R. 3249, effective July 10, 2002 (Supp. 02-3). Amended by final rulemaking at 9 A.A.R. 1867, effective June 3, 2003 (Supp. 03-2). Amended by final rulemaking at 10 A.A.R. 2679, effective June 8, 2004 (Supp. 04-2). Amended by final rulemaking at 12 A.A.R. 1559, effective May 2, 2006 (Supp. 06-2). Amended by final rulemaking at 14 A.A.R. 3797, effective November 8, 2008 (Supp. 08-3).).

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 under R17-5-209.

2. Paragraph (b) is amended to read:

A motor carrier driver domiciled in Arizona who operates a commercial motor vehicle as defined under 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.

4. Paragraph (f)(6) is deleted.

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 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 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 eight or more persons or transports a hazardous material in an amount requiring marking or placarding as prescribed by the federal regulations incorporated in R17-5-209;
c. Is not an intrastate-operating tow truck that has a GVWR of 26,000 pounds or less, 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; or
d. Operates for purposes of interstate commerce with a GVWR of greater than 10,000 pounds.

4. "Exempt intracity zone" is deleted and has no application in 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 R17-5-207 and the term "motor carrier" is substituted.
6. "Regional Director of Motor Carriers" means the Division Director of the Arizona Department of Transportation, Motor Vehicle Division.
7. "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.
8. "State" means a state of the United States or the District of Columbia.
9. "Tow truck," as used in the definition of emergency in 49 CFR 390.5, has the meaning prescribed under A.A.C. R13-3-101.

R17-5-204. Motor Carrier Safety: 49 CFR 391 - Qualifications of Drivers

A. 49 CFR 391.11 Qualifications of drivers. Paragraph (b)(1) is amended to read:
Is at least 21 years of age for interstate operation and at least 18 years of age for operations restricted to intrastate transportation not involving the transportation of a reportable quantity of hazardous substance, hazardous waste required to be manifested, or hazardous material in an amount requiring a vehicle to be marked or placarded as prescribed under R17-5-209.

B. 49 CFR 391.49 Alternative physical qualification standards for the loss or impairment of limbs.

1. Paragraph (a) is amended by adding:
A person not physically qualified to drive as prescribed under 49 CFR 391.41(b)(1), (b)(2), (b)(3), or (b)(10) but otherwise qualified to drive a motor vehicle, may drive a motor vehicle in intrastate commerce if the Director grants an intrastate waiver to the person. Application for an intrastate waiver shall be submitted according to subsection (C). If granted, an intrastate waiver shall be for a period not to exceed two years. A person granted an intrastate waiver may transfer the intrastate waiver from an original employer to a new employer upon written notification to the Director stating the new employer's name and the type of equipment to be driven.

2. Paragraph (b) is amended by adding:
To obtain an intrastate waiver, an applicant or an applicant and co-applicant shall submit a letter of application for an intrastate waiver of a physical qualification to the Motor Vehicle Division, Medical Review Program, P.O. Box 2100, Mail Drop 818Z, Phoenix, Arizona 85001-2100. The applicant shall comply with all the requirements of 49 CFR 391.49(c), "Alternative physical qualification standards for the loss or impairment of limbs,". The driver applicant shall respond to the requirements of 49 CFR 391.49(c)(2)(i) through (c)(2)(v), if the information is known.

3. Paragraph (c)(1)(iv) is amended to read:
A description of the driver applicant's limb or visual impairment as applicable to the type of waiver being requested.

4. Paragraph (d)(3)(i) is amended to read:
The medical evaluation summary for a driver applicant disqualified under 49 CFR 391.41(b)(1) or (b)(10) shall include:

5. Paragraph (d)(3)(i)(B) is amended to read:
A statement by the examiner that the applicant is capable of demonstrating precision prehension (e.g., manipulating knobs and switches) and power grasp prehension (e.g., holding and maneuvering the steering wheel) with each upper limb separately when the intrastate waiver is requested due to a loss or impairment of limbs or a statement by the examiner that an applicant has distant visual acuity at least 20/40 (Snellen), with or without a corrective lens, in one eye, visual field of at least 70° peripheral measurement of the horizontal meridian of the applicant's dominant eye, and the ability to distinguish the colors of a traffic signal or device showing standard red, green, and amber, as applicable to the type of waiver being requested.

6. Paragraph (j)(1) is amended by adding:
A person with a distant visual acuity of greater than 20/40 (Snellen), with or without a corrective lens, in one eye; a field of vision of less than 70° peripheral measurement of the horizontal meridian of the person's dominant eye; and the inability to distinguish the colors of a traffic signal or device showing standard red, green and amber, shall not:

a. Transport any amount of hazardous material required to be marked or placarded as prescribed under R17-5-209, or
b. Operate a vehicle for the purpose of transporting passengers as prescribed under R17-5-202.

C . Waiver procedure for an intrastate driver.

1. A person not physically qualified to drive as prescribed under 49 CFR 391.41(b)(1), (b)(2), or (b)(10) but otherwise qualified to drive a motor vehicle, may drive a motor vehicle intrastate commerce if the Director grants an intrastate waiver to the person.
2. The applicant shall submit an application to the Division as prescribed under 49 CFR 391.49(a), (b), (c), and (d) as amended under this Section.
3. Upon receipt of an application for an intrastate waiver, the Director shall:

a. Review the application for waiver to ensure all provisions of 49 CFR 391.49 are met;
b. Take necessary testimony and accept documentation and information about the application;
c. Ensure that a driver applying for an intrastate waiver of the visual requirements:

i. Has driven the type of vehicle to be operated as prescribed in the waiver for at least two of the previous five years; and
ii. Will not transport passengers for hire, or
i ii. Will not transport a reportable quantity of a hazardous substance, hazardous waste that requires a manifest, or hazardous material that requires marking or placarding as prescribed under R17-5-209;

d. Send written and dated notification of the approval or denial of the applicant's request for a waiver to the applicant within 10 days of the decision. The notice shall:

i. Direct the approved applicant to contact the nearest Commercial Driver Licensing office to schedule a commercial driver license pre-inspection, off-road, and on-road tests within 30 days from date of notice; or
ii. Inform the denied applicant of the right to a hearing and the procedure for requesting an administrative hearing. The administrative hearing is held in accordance with the procedures prescribed under 17 A.A.C. 1, Article 5.

4. Intrastate waiver form.

a. The Director shall ensure that the application for waiver form reflects the terms, conditions, or limitations of the waiver.
b. The Director shall maintain the original waiver form.
c. The motor carrier shall retain a legible copy of the waiver form:

i. During the driver's employment as a driver, and
ii. For a minimum of three years after the driver ceases driving for the motor carrier.

d. A driver granted a waiver shall possess a legible copy of the waiver when driving a commercial motor vehicle.

5. If the enforcement of any provision of this Section would result in the loss or disqualification of federal funding for any state agency or program, that provision is invalid.

D. Subpart F - Files and Records. 49 CFR 391.51 General requirements for driver qualification files.
Paragraph (b)(8) is amended by adding:
"or the Director's letter of notification, granting an intrastate waiver of physical disqualification, if a waiver is granted as prescribed under this Section."

E. The following sections are deleted:

1. 49 CFR 391.68 Private motor carrier of passengers (nonbusiness).
2. 49 CFR 391.69 Private motor carrier of passengers (business).

Historical Note
New Section recodified from R17-4-435.02 at 7 A.A.R. 3483, effective July 20, 2001 (Supp. 01-3). Amended by final rulemaking at 14 A.A.R. 3797, effective November 8, 2008 (Supp. 08-3).

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 substances and alcohol use and testing requirements begin for all motor carriers on the date this Section goes into effect.

C. Paragraph (b) is deleted.

Historical Note
New Section recodified from R17-4-435.03 at 7 A.A.R. 3483, effective July 20, 2001 (Supp. 01-3). Amended by final rulemaking at 8 A.A.R. 3249, effective July 10, 2002 (Supp. 02-3). Amended by final rulemaking at 14 A.A.R. 3797, effective November 8, 2008 (Supp. 08-3)..

R17-5-206. Motor Carrier Safety: Amendment to 49 CFR 392

A. 49 CFR 392.5 Alcohol prohibition. Paragraph (e) is amended to read:
Drivers who violate the terms of an out-of-service order as prescribed under this Section are subject to the provisions and sanctions of A.R.S. § 28-5241.

B. 49 CFR 392.9a is deleted.

Historical Note
New Section recodified from R17-4-435.04 at 7 A.A.R. 3483, effective July 20, 2001 (Supp. 01-3). Amended by final rulemaking at 9 A.A.R. 1867, effective June 3, 2003 (Supp. 03-2). Amended by final rulemaking at 14 A.A.R. 3797, effective November 8, 2008 (Supp. 08-3).

R17-5-207. Civil penalties

To determine the amount of civil penalty for repeat findings of responsibility for the same class of violations involving vehicles required to be placarded, the higher level of civil penalty as prescribed under A.R.S. § 28-5238 applies.

Historical Note
New Section recodified from R17-4-435.05 at 7 A.A.R. 3483, effective July 20, 2001 (Supp. 01-3). Amended by final rulemaking at 14 A.A.R. 3797, effective November 8, 2008 (Supp. 08-3).

R17-5-208. Commercial Driver License Insulin-dependent Diabetic Waiver

A person not physically qualified to drive as prescribed under 49 CFR 391.41(b)(3) but otherwise qualified to drive a motor vehicle, may drive a commercial motor vehicle if the Federal Diabetes Exemption Program grants a waiver to the person. An insulin-dependent diabetic applicant may request an application for an Insulin-dependent Diabetic Waiver by contacting the Federal Diabetes Exemption Program either by telephone at (703) 448-3094 or in writing at Federal Diabetes Exemption Program, 1200 New Jersey Ave., SE, Room W64-224, Washington, DC 20590.

 

Historical Note
New Section recodified from R17-4-435.06 at 7 A.A.R. 3483, effective July 20, 2001 (Supp. 01-3). Amended by final rulemaking at 8 A.A.R. 3249, effective July 10, 2002 (Supp. 02-3). Section repealed; new Section made by final rulemaking at 14 A.A.R. 3797, effective November 8, 2008 (Supp. 08-3).

 

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, 2005 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, 2005 edition and no later amendments or editions. The incorporated material is available from the U.S. Government Printing Office, Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-0001, and is on file with the Division.

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 under 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 under 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, that 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 one or more 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 under A.R.S. § 28-5201 and includes the state, political subdivisions, and state public authorities."
"`Highway' means a public highway defined under A.R.S. § 28-5201."
"`Person' has the same meaning as defined under 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.
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 under A.R.S. §§ 28-5204 and 28-5231."

 

Historical Note

NNew Section recodified from R17-4-436 at 7 A.A.R. 3483, effective July 20, 2001 (Supp. 01-3). Amended by final rulemaking at 8 A.A.R. 3249, effective July 10, 2002 (Supp. 02-3). Amended by final rulemaking at 9 A.A.R. 1867, effective June 3, 2003 (Supp. 03-2). Amended by final rulemaking at 13 A.A.R. 1262, effective May 5, 2007 (Supp. 07-1).

R17-5-210. Motor Carrier Safety: Public Service Corporation, Political Subdivision of this State that is Engaged in Rendering Public Utility Service, or Railroad Contacting State Officials in an Emergency

A. A public service corporation, political subdivision of this state that is engaged in rendering public utility service, or railroad shall notify the Commercial Vehicle Enforcement Bureau, through the Arizona Department of Public Safety Duty Office, that an emergency situation under A.R.S. § 28-5234(B) exists. Notification shall be made on a form provided by the Arizona Department of Public Safety and sent by fax transmission to (602) 223-2929 immediately, but in no case longer than three hours from the time the public service corporation, political subdivision of this state that is engaged in rendering public utility service, or railroad determines that the emergency situation exists. The information to be provided includes:

1. Date of the emergency situation,
2. Time that the emergency situation started,
3. Description of the emergency situation,
4. Location of the emergency situation,
5. Projected duration of the emergency situation,
6. Authorized party's signature for determining that an emergency situation exists,
7. Name and contact number of responsible party in the field, and
8. The utility's self-generated Emergency ID or tracking number.

B. A public service corporation, political subdivision of this state that is engaged in rendering public utility service, or railroad shall maintain supporting documentation for no less than three years from the date of an emergency situation and shall make the supporting documentation available to a special agent upon request. Supporting documentation includes;

1. A list of drivers involved in the emergency situation,
2. The duration of the emergency situation,
3. The off-duty time provided for the affected drivers after the emergency situation concluded, and
4. Any United States Department of Transportation recordable accidents, as defined in 49 CFR 390.15, that occurred during the emergency situation.

C. After an emergency situation terminates and a driver returns to the principal place of business, the driver shall not drive a commercial motor vehicle unless the driver remains off duty under 49 CFR 395.

Historical Note
New Section recodified from R17-4-438 at 7 A.A.R. 3483, effective July 20, 2001 (Supp. 01-3). Amended by final rulemaking at 7 A.A.R. 4259, effective September 13, 2001 (Supp. 01-3). Section repealed by final rulemaking at 8 A.A.R. 3249, effective July 10, 2002 (Supp. 02-3). New Section made by final rulemaking at 11 A.A.R. 862, effective February 1, 2005 (Supp. 05-1).

R17-5-211. Motor Carrier Safety: Inspection, Enforcement, Sanction

A. Scope. This Section applies to any transporter subject to:

1. R17-5-202 through R17-5-209; and
2. A.R.S. Title 28, Chapter 14.

B. Audits.

1. The Division may conduct an audit for cause or without cause.
2. The Division may enter the premises of any transporter for the purpose of conducting an audit.
3. The Division may inspect a motor vehicle:

a. Within Arizona at:

i. A transporter's place of business; or
ii. Any other in-state location; or

b. Outside Arizona at a transporter's place of business.

4. A transporter shall make records available for audit:

a. During the transporter's normal business hours; and
b. In a specific location as follows:

i. The transporter's Arizona place of business; or
ii. Either an Arizona location designated by the Division Director or the transporter's out-of-state place of business.

5. The Division shall charge a transporter in advance for all expenses to be incurred in performance of an out-of-state audit.

C. Violation notification. Within five days after audit completion, the Division shall notify an audited transporter in writing of all violations. The notification shall specify a deadline date for remedy of all violations.

D. Obligation to remedy violations: After receipt of a violation notification, a transporter shall remedy all violations by the specified date to comply with:

1. R17-5-202 through R17-5-209; and
2. A.R.S. Title 28, Chapter 14

E. Noncompliance: Failure to remedy violations. If the Division determines a transporter did not remedy a violation by the date specified in a violation notice, the Division shall initiate further enforcement action as prescribed under A.R.S. §§ 28-5237 and 28-5238.

F. Danger to public safety. If the Division Director determines a written violation report establishes probable cause of danger to public safety, the Division Director shall issue an order by 5:00 p.m. the next business day suspending the Arizona registration of the motor vehicle owned or leased by the transporter, or a driver's Arizona driver license or nonresident driving privilege.

Historical Note
New Section recodified from R17-4-439 at 7 A.A.R. 3483, effective July 20, 2001 (Supp. 01-3). Amended by final rulemaking at 7 A.A.R. 4259, effective September 13, 2001 (Supp. 01-3).

R17-5-212. Motor Carrier Safety: Hearing Procedure

A. Scope.

1. This Section applies only to a motor carrier enforcement action under:

a. R17-5-202 through R17-5-207;
b. R17-5-209; and
c. A.R.S. Title 28, Chapter 14.

2. In an enforcement hearing involving a manufacturer, motor carrier, shipper, or driver under this Section, the Department shall follow the procedures prescribed under 17 A.A.C. 1, Article 5, except as specified in subsections (B) through (I).

B. Initiation of proceedings, pleadings.

1. The Division Director shall initiate a hearing under this Section by:

a. Signing and serving a complaint in the form prescribed under subsection (G) that cites a manufacturer, motor carrier, shipper, or driver for an alleged infraction; and
b. Serving the cited manufacturer, motor carrier, shipper, or driver with a hearing notice within 15 days after the date the complaint is signed.

2. After the Division Director signs a complaint, the Executive Hearing Office as defined in R17-1-501 shall act on the Division Director's behalf through completion of an administrative proceeding under this Section.

C. Order to show cause.

1. When a complaint is served, the Executive Hearing Office shall immediately issue a summons for a respondent to appear at an administrative hearing to explain why the Division should not grant the requested relief.
2. The Executive Hearing Office shall hold a hearing under this Section within 60 days after the date the complaint is served.
3. The parties may resolve a complaint before the hearing date.

a. The respondent shall file any settlement condition with the Executive Hearing Office.
b. Complaint settlement terminates the right of both petitioner and respondent to receive additional administrative review.

D. Service.

1. The Executive Hearing Office shall:

a. Send an order to show cause by certified mail as prescribed under A.R.S. § 28-5232(B); and
b. Maintain a proof-of-service file.

2. The date of service is the date of mailing.

E. Answer.

1. Within 15 days after service of a complaint, a respondent shall respond to the complaint by:

a. Filing a written answer with the Executive Hearing Office; and
b. Serving the Assistant Attorney General, Transportation Division, representing the Motor Vehicle Division with a copy of the answer.

2. A respondent's written answer shall contain:

a. An admission or denial of each complaint allegation, and
b. A list of all defenses that the respondent intends to raise during the hearing.

3. In a hearing, the Executive Hearing Office shall consider any allegation not denied in the answer as an admission to the allegation.

F. Default.

1. The Executive Hearing Office shall find a respondent that fails to file an answer within 15 days after a complaint's service date in default.
2. If the Executive Hearing Office finds a respondent in default, the Executive Hearing Office shall:

a. Consider the respondent's default as an admission of all complaint allegations unless the default is cured under subsection (F)(3); and
b. Enter an order granting the relief requested in the Division's complaint.
3. A respondent may cure a default by following Rule 60(c) of the Arizona Rules of Civil Procedure.

G. Emergency motor carrier hearings; scope.

1. The Division Director shall initiate an emergency motor carrier hearing process according to R17-5-211(F) by:

a. Issuing a complaint and order to show cause according to the hearing scope under A.R.S. § 28-5232(C); and
b. Ordering immediate suspension of the registration of the vehicle owned or leased by a motor carrier or the driver license or driver's non-resident operating privilege as prescribed under A.R.S. § 28-5232(A).

2. The Executive Hearing Office shall set an emergency hearing date to occur within 30 days after the date of the complaint.

3. The complaint and order to show cause shall contain the following:

a. The Division designated as the petitioner on the state's behalf;
b. The respondent's name and the basis of fact for the complaint, including a listing of any alleged violation of Department statute or rule;
c. The relief sought by the Division; and
d. An original copy of the written violation notice issued by a law enforcement agency that was served upon the respondent.

4. At an emergency motor carrier hearing, an Executive Hearing Office administrative law judge shall determine whether the respondent:

a. Was operating on a public highway and the operation created a danger to the public safety;
b. Was responsible for the danger; and
c. Is responsible for preventing or remedying further danger to public safety.

5. Upon a finding that the factors in subsection (G)(4) are present, the administrative law judge shall order that the motor carrier's registration and operator's driver license or driver's non-resident operating privilege suspension continue.

6. If a respondent fails to appear at an emergency motor carrier hearing, any suspension previously ordered remains in effect until the respondent appears and meets all requirements under A.R.S. § 28-5232(F).

H. Upon a finding that the factors in subsection (G)(4) are present, the Division Director shall impose a civil penalty as prescribed under A.R.S. §§ 28-5232(F), 28-5237(E), and 28-5238.

I. A respondent may request judicial review of a motor carrier safety hearing proceeding as prescribed under A.R.S. § 28-5239.

Historical Note
New Section recodified from R17-4-440 at 7 A.A.R. 3483, effective July 20, 2001 (Supp. 01-3). Amended by final rulemaking at 8 A.A.R. 4230, effective November 15, 2002 (Supp. 02-3).