700 CMR 2.00 — Rules for adopting, amending or repealing administrative regulations and for issuing advisory rulings

700 CMR: DEPARTMENT OF TRANSPORTATION 700 CMR 2.00:RULES FOR ADOPTING, AMENDING OR REPEALING ADMINISTRATIVE REGULATIONS AND FOR ISSUING ADVISORY RULINGS Section 2.01: Scope and Purpose 2.02: Petition by an Interested Person or Entity 2.03: Initial Determinations with Respect to a Petition 2.04: Decision by MassDOT with Respect to a Petition 2.05: Initiation of an Action by MassDOT 2.06: Adoption, Amendment, or Repeal of a Regulation after a Hearing 2.07: Adoption, Amendment, or Repeal of a Regulation without a Hearing 2.08: Issuance of an Advisory Ruling 2.09: Filing, Publication, and Public Access

700 CMR 2.00 Rules for adopting, amending or repealing administrative regulations and for issuing advisory rulings

2.01 Scope and Purpose

2.01: Scope and Purpose (1) Scope. The provisions of 700 CMR 2.00 pertain to the following enumerated administrative actions that the Massachusetts Department of Transportation (MassDOT) may take under, or consistent with, the State Administrative Procedure Act (M.G.L. c. 30A). (a)Adoption, Amendment, or Repeal of a Regulation after a Hearing . MassDOT undertakes actions within this category in accordance with the provisions of the State Administrative Procedure Act, M.G.L. c. 30A, §§ 1(5) and 2. (b)Adoption, Amendment, or Repeal of a Regulation without a Hearing . MassDOT undertakes actions within this category in accordance with the provisions of the State Administrative Procedure Act, M.G.L. c. 30A, §§ 1(5) and 3. (c) Issuance of an Advisory Ruling . MassDOT undertakes actions within this category in accordance with the provisions of the State Administrative Procedure Act, M.G.L. c. 30A, § 8. (2)Purpose . The purpose of 700 CMR 2.00 is to advise interested persons and entities concerning the process that MassDOT uses to take administrative action, specifically in relation to rulemaking activity and the clarification of rules and policy through advisory rulings. The intent of 700 CMR 2.00 is to maximize MassDOT's opportunities to receive from interested persons or entities an accurate and balanced view of the issues that MassDOT decides to consider and to set out procedures for MassDOT’s taking efficient action with respect to such issues. However, MassDOT is not required to engage in rulemaking or to issue advisory rulings at the request of an interested person or entity. 700 CMR 2.00 does not alter MassDOT 's discretion as to such matters.

2.02 Petition by an Interested Person or Entity

2.02: Petition by an Interested Person or Entity (1) Scope. In accordance with M.G.L. c. 30A, §§ 4, 700 CMR 2.02 governs the procedure by which an interested person or entity may submit a petition to MassDOT requesting that it take administrative action under one of the categories specified in 700 CMR 2.01(1). (2) Who May Petition. Any person or entity with an interest in the subject matter (a petitioner) may submit a petition to MassDOT. (3)Duty of the Petitioner . In furtherance of MassDOT's desire to obtain as accurate and balanced a view as practicable of the issues that petitions submitted under 700 CMR 2.02 present, a petitioner shall make all reasonable efforts to ensure that a petition: (a) is complete and accurate in all material respects; and (b) is not misleading because of an undue emphasis on information or views favorable to the petitioner or a de-emphasis of information or views unfavorable to the petitioner. (4) Content of the Petition . A petition under 700 CMR 2.02 need not be on or in a prescribed form, but must contain in clear and concise language all of the following information to the best of the petitioner's information and belief and in conformance with the obligation of candor set forth in 700 CMR 2.02(3): 8/7/20700 CMR - 3.3

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2.02 continued

2.02: continued (a)the name, address, email address and telephone number of the petitioner and, if applicable, of the attorney representing the petitioner with respect to the petition; (b) the nature of the petitioner's interest; (c) if the petitioner is requesting that MassDOT adopt or amend a regulation, the complete text of the proposed new regulation or amendment; if the petitioner is requesting that MassDOT repeal a regulation or portion of a regulation, a precise description of the regulation affected; and, if the petitioner is requesting that MassDOT issue an Advisory Ruling, a concrete statement of the facts and a specific legal question that may serve as the focus of MassDOT's ruling; (d) a statement of the need for the requested action; (e) a statement of fact and argument in support of the requested action; (f) a statement of legal authorities, if any, supporting the requested action; (g) a statement disclosing the existence and general nature of any past, continuing, or anticipated litigation or collective bargaining related to the subject of the petition; (h) a statement disclosing the identity and interests of any persons or entities, or groups of people or entities, that the petitioner has reason to believe that the requested action might adversely affect or that otherwise might have a significant interest in the subject of the petition; and (i) the signature of the petitioner or the petitioner's attorney. (5)Continuing Duty to Inform . From the time that the petitioner files a petition under 700 CMR 2.02 until the time that MassDOT acts upon the petition, the petitioner is under a continuing duty to amend the petition as soon as practicable after learning of any newly discovered information that 700 CMR 2.02 would have required the petitioner to include in the petition at the time of filing or that materially alters the information that the petitioner presents in the petition. An amendment need not be on or in a prescribed form, but must be in writing, signed by the petitioner or the petitioner's attorney, refer specifically to the petition, and contain a clear and concise description of the newly discovered information. (6)Filing with MassDOT . A petition or an amendment consists of a clear, signed copy submitted to MassDOT in accordance 700 CMR 2.02(6). The petitioner or the petitioner's designee may submit a petition or amendment in person at the main offices of MassDOT during regular business hours, may mail a petition or amendment to the chief legal advisor of MassDOT or such other person as MassDOT may designate (referred to simply as the "general counsel"), at the main offices of MassDOT, or may submit a petition or amendment by email to: AdministrativePetitions@dot.state.ma.us. If submitted in person or by mail, a petition or amendment must be placed in an envelope clearly marked on the outside with the following words: "Attention General Counsel: Petition or Amendment under 700 CMR 2.00". If submitted electronically, any applicable email subject lines and file names must indicate the submission of a "Petition or Amendment under 700 CMR 2.00". A petition or amendment may not be submitted by facsimile. MassDOT considers a petition or amendment filed on the date that MassDOT receives it in conformance with the requirements of 700 CMR 2.02(6). Upon receipt of a petition or amendment in person or by mail, the general counsel notes the date of filing thereon.

2.03 Initial Determinations with Respect to a Petition

2.03: Initial Determinations with Respect to a Petition

(1)Scope . 700 CMR 2.03 governs the procedures by which MassDOT makes initial determinations regarding the nature of a petition and whether it conforms to the requirements of 700 CMR 2.02. (2) Who Makes the Initial Determinations . Subject to 700 CMR 2.03(6), the general counsel makes the initial determinations under 700 CMR 2.03. (3) Nature of the Petition. The general counsel determines the nature of the petition by: (a) classifying it as one of the types of administrative action noted in 700 CMR 2.01(1); (b) classifying it as more than one type of administrative action noted in 700 CMR 2.01(1) and recommending that the petitioner amend the petition so that MassDOT can appropriately consider it under each of such categories; or 8/7/20700 CMR - 3.4

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2.03 continued

2.03: continued (c) concluding that MassDOT should not consider the petition. One basis upon which the general counsel may conclude that MassDOT should not consider the petition under 700 CMR 2.00 is that the petition seeks adjudicatory rather than rulemaking action. (4) Conformance with 700 CMR 2 .02. The general counsel determines whether the petition conforms with the requirements of 700 CMR 2.02. (5) Referral to the Secretary of Transportation for Consideration. Upon completion of the initial determinations specified in 700 CMR 2.03, the general counsel refers the petition and determinations to the Secretary of Transportation for her consideration in accordance with 700 CMR 2.04. (6) No Requirement to Make an Initial Determination . Notwithstanding the provisions or requirements of any other subsection of 700 CMR 2.03, MassDOT may decide as a matter of policy or in any instance to dispense with the process of initial determination and to proceed directly to a decision under 700 CMR 2.04.

2.04 Decision by MassDOT with Respect to a Petition

2.04: Decision by MassDOT with Respect to a Petition (1) Scope. 700 CMR 2.04 governs the procedure by which MassDOT determines how to proceed with a petition submitted under 700 CMR 2.02. (2) Alternative Actions . MassDOT may consider any recommendations or determinations that the general counsel makes under 700 CMR 2.03 with respect to a petition or may consider a petition alone. MassDOT may decide to: (a) take no further action on a petition; (b) postpone action on a petition until the petitioner has redrafted or supplemented it to meet stated deficiencies; (c) postpone action on a petition to a subsequent meeting or indefinitely; (d)proceed under 700 CMR 2.06, and in accordance with the requirements of M.G.L. c. 30A, § 2, to adopt, amend, or repeal a regulation of MassDOT after a hearing; (e)proceed under 700 CMR 2.07, and in accordance with the requirements of M.G.L. c. 30A, § 3, to adopt, amend, or repeal a regulation of MassDOT without a hearing; (f)proceed under 700 CMR 2.08, and in accordance with the requirements of M.G.L. c. 30A, § 8, to issue an Advisory Ruling; or (g) take any other action that MassDOT deems appropriate. (3) Change of Decision . At any time, and for any reason, MassDOT may change a decision taken under 700 CMR 2.04(2), including a change that results in MassDOT's taking no further action on the petition. (4) Notification . As soon as practicable after taking an action under 700 CMR 2.04(2) or (3), MassDOT notifies the petitioner of the action by mailing or emailing notice to the address or email address specified on the petition. MassDOT is not required to explain or substantiate the reasons for any action that it takes under 700 CMR 2.04(2) or (3).

2.05 Initiation of an Action by MassDOT

2.05: Initiation of an Action by MassDOT MassDOT may, at its own initiative and at any time, decide to proceed under 700 CMR 2.06 or 2.07.

2.06 Adoption, Amendment, or Repeal of a Regulation after a Hearing

2.06: Adoption, Amendment, or Repeal of a Regulation after a Hearing (1) Scope. 700 CMR 2.06 governs the procedure by which MassDOT, acting either in response to a petition submitted under 700 CMR 2.02 or on its own initiative, acts to adopt, amend, or repeal a regulation after a hearing. (2) Requirement of a Hearing . MassDOT takes action to adopt, amend, or repeal a regulation in conformance with 700 CMR 2.06 if M.G.L. c. 30A, § 2, requires a hearing. 8/7/20700 CMR - 3.5

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2.06 continued

2.06: continued (3) Notice. MassDOT provides notice in accordance with the requirements of M.G.L. c. 30A, § 2, and any other applicable law, prior to the adoption, amendment, or repeal of a regulation as to which a hearing is required. (4) Conduct of the Hearing . A hearing takes place on the date and at the place specified in the notice provided under 700 CMR 2.06(3). MassDOT conducts the hearing in conformance with M.G.L. c. 30A, § 2, and the following provisions. (a) One or more MassDOT designees, the general counsel, or a hearing officer designated by MassDOT (referred to simply as the hearing officer) may conduct a hearing. (b) The hearing officer may impose reasonable time or other restrictions on the presentation of testimony or materials in order to make best use of the time initially allotted for the hearing. (c) The hearing officer may adjourn and continue the hearing to a specified time and place if the hearing officer determines that the initial time allotted for the hearing has proven to be insufficient in view of the goal of providing MassDOT with as accurate and balanced a view of the relevant facts and issues as is practicable. (d) The hearing officer shall submit a report to MassDOT, either orally or in writing as MassDOT determines, that includes a summary of the proceedings, any recommendations that the hearing officer may wish to make, and all materials submitted at the hearing in accordance with 700 CMR 2.06(5). (5) Submission of Materials . An interested person may submit oral or written testimony, or written materials, at or after the hearing in accordance with the following procedures. (a) An interested person may mail, or deliver in person, to the general counsel at MassDOT's main office a notice of intent to testify or to submit written or other materials at a hearing (a notice of intent). The general counsel must receive a notice of intent not later than five business days before the hearing. One complete copy of any written materials intended to be submitted at the hearing must be included with the notice of intent. The hearing officer may allow persons who have submitted a notice of intent to testify at the hearing before those who have not and may exclude testimony relating to written materials not submitted in a timely manner with a notice of intent. The hearing officer may exclude from the hearing or subsequent presentation to MassDOT any exhibits or materials on the basis that their transportation or storage is impracticable, but shall inform MassDOT of any such decision. (b) MassDOT at its discretion and at any time prior to making a decision under 700 CMR 2.06(6), may accept from an interested person any additional oral or written testimony or materials concerning the subject matter of the hearing. Any person making such a submission shall indicate in writing the reason that the testimony or materials were not offered or accepted at the hearing. (6) Decision . In making its decision regarding the proposed adoption, amendment, or repeal of a regulation, MassDOT may take into account in whatever manner and to whatever extent it deems appropriate: (a) any oral or written information, opinion, or argument presented at a hearing, including the report of the hearing officer; (b) any other testimony or material submitted under 700 CMR 2.06(5)(b); and (c) any other oral or written information, opinion, or argument, from whatever source and however obtained, that MassDOT wishes to consider in order to assist it in reaching a decision. (7) Form of the Regulation . MassDOT may adopt, amend, or repeal a regulation in a revised form in a manner that is consistent with the requirements of 700 CMR 2.06(3). (8)Emergency Regulation. Notwithstanding the provisions or requirements of any other subsection of 700 CMR 2.06, MassDOT may adopt an emergency regulation under the circumstances described by, and in conformance with, M.G.L. c. 30A, § 2. 8/7/20700 CMR - 3.6

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2.07 Adoption, Amendment, or Repeal of a Regulation without a Hearing

2.07: Adoption, Amendment, or Repeal of a Regulation without a Hearing (1) Scope. 700 CMR 2.07 governs the procedure by which MassDOT, acting either in response to a petition submitted under 700 CMR 2.02 or on its own initiative, acts to adopt, amend, or repeal a regulation without a hearing. (2) Determination That a Hearing Is Not Required . MassDOT takes action to adopt, amend, or repeal a regulation in conformance with 700 CMR 2.07 if M.G.L. c. 30A, § 3, does not require a hearing. (3) Notice. MassDOT provides notice in accordance with the requirements of M.G.L. c. 30A, § 3, and any other applicable law prior to the adoption, amendment, or repeal of a regulation as to which a hearing is not required. (4) Submission of Materials . An interested person may submit written materials to MassDOT relating to the subject matter of the proposed adoption, amendment, or repeal of a regulation. Such materials are addressed to the general counsel at the main office of MassDOT or delivered in person to the main office during regular business hours. The written materials must identify the sender by name and address, and the general counsel must receive the materials not later than five business days before the date set out in the notice under 700 CMR 2.07(3). MassDOT may specify in the notice provided under 700 CMR 2.07(3) the manner, place, and time that interested persons may orally present data, views, or argument if MassDOT determines that oral presentations are desirable and practicable. (5) Decision . In making its decision regarding the proposed adoption, amendment, or repeal of a regulation, MassDOT may take into account in whatever manner and to whatever extent it deems appropriate any oral or written information, opinion, or argument presented under 700 CMR 2.07(4) and any other oral or written information, opinion, or argument that MassDOT decides to consider in order to assist it in reaching a decision. (6) Form of the Regulation . MassDOT may decide to adopt, amend, or repeal a regulation in a revised form in a manner that is consistent with the requirements of 700 CMR 2.07(3). (7)Emergency Regulation. Notwithstanding the provisions or requirements of any other subsection of 700 CMR 2.07, MassDOT may adopt an emergency regulation under the circumstances described by, and in conformance with, M.G.L. c. 30A, § 3.

2.08 Issuance of an Advisory Ruling

2.08: Issuance of an Advisory Ruling MassDOT may issue an Advisory Ruling in response to a petition submitted under 700 CMR 2.02. MassDOT is disinclined to answer hypothetical or abstract questions or questions that inquire generally about the construction or application of a particular statute, regulation, or policy absent a specific factual underpinning set forth in the petition.

2.09 Filing, Publication, and Public Access

2.09: Filing, Publication, and Public Access MassDOT conforms to the filing requirements of M.G.L. c. 30A, § 5, with respect to actions that MassDOT takes under 700 CMR 2.06 or 2.07 and provides to the state secretary all documents required to be provided under M.G.L. c. 30A, § 6, for publication in the Massachusetts Register. MassDOT provides public access to the regulations of MassDOT in conformance with the requirements of M.G.L. c. 30A, § 6B. MassDOT also provides public access to all Advisory Rulings issued under 700 CMR 2.08 at its main office during normal business hours and provides copies of Advisory Rulings upon request for a reasonable fee. REGULATORY AUTHORITY 700 CMR 2.00: M.G.L. c. 6C; M.G.L. c. 30A, §§ 1, 2, 3, 4 and 8. 8/7/20700 CMR - 3.7