Towing Rules - New Mexico Public Regulation Commission
Towing Rules - New Mexico Public Regulation Commission
Towing Rules - New Mexico Public Regulation Commission
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BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION<br />
IN THE MATTER OF PROPOSED<br />
REVISIONS TO THE RATES, TERMS AND)<br />
CONDITIONS OF THE STATEWIDE<br />
WRECKER TARIFF, AND FOR<br />
AMENDMENT TO THE FUEL<br />
SURCHARGE RULE, 18.3.15 NMAC,<br />
TRANSPORTATION DIVISION STAFF<br />
OF THE NEW MEXICO PUBLIC<br />
REGULATION COMMISSION,<br />
Petitioner.<br />
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Case No. 10-00334-TR-R<br />
FINAL ORDER REVISING THE STATEWIDE WRECKER TARIFF AND AMENDING<br />
RULE 18.3.15 NMAC<br />
THIS MATTER comes before the <strong>New</strong> <strong>Mexico</strong> <strong>Public</strong> <strong>Regulation</strong> <strong>Commission</strong><br />
(<strong>Commission</strong>) upon the Recommended Decision issued by Hearing Examiner Ashley C.<br />
Schannauer on June 1,2011, and the exceptions of 54 <strong>Towing</strong> Corp. (54 <strong>Towing</strong>), filed June 9,<br />
2011. Having considered the Recommended Decision and the exceptions, as well as the record<br />
in this case, and being fully informed in the premises,<br />
THE COMMISSION FINDS AND CONCLUDES:<br />
1. The Statement of the Case, Discussion, and all Findings of Fact and Conclusions<br />
of Law contained in the Recommended Decision (RD) are hereby incorporated by reference as if<br />
fully set forth in this Final Order, and are ADOPTED, APPROVED, and ACCEPTED as<br />
Final Order Revising Wrecker Tariff<br />
And Amending Rule 18.3.15 NMAC<br />
Case No. 10-00334-TR-R<br />
Page 1 of 8
Findings and Conclusions of the <strong>Commission</strong>, except to the extent expressly modified or<br />
disapproved herein.<br />
2. The <strong>Commission</strong> has jurisdiction over the parties and the subject matter of this<br />
case.<br />
3. The only Exceptions to the Recommended Decision were filed by 54 <strong>Towing</strong>.<br />
RULE 18.3.15 NMAC, FUEL SURCHARGE FOR WRECKER SERVICES PERFORMING<br />
NON-CONSENSUAL TOWS (ATTACHED AS EXHIBIT I)<br />
4. Wreckers may charge customers a fuel surcharge based in part on a fuel<br />
adjustment per mile. Se.._.~e Rule 18.3.15.8 (A) NMAC. The adjustment equals (the current regional<br />
price for fuel minus $2.50) divided by 5, where $2.50 is the base cost per gallon of fuel. Thus<br />
the lower the base cost, the more money that wreckers can charge customers. The fuel surcharge<br />
is paid by customers in addition to the overall bill for fuel costs. Se.._~e Rule 18.3.15.8 (C) NMAC.<br />
The surcharge takes effect only if the current price exceeds $2.50.<br />
5. 54 <strong>Towing</strong>’s objection (Exceptions, p.2) was directed to the Notice of Proposed<br />
Rulemaking’s (NOPR’s) change of the base fuel price from $1.45 per gallon to $3.00 per gallon.<br />
However, the RD used a base fuel price of $2.50, not the $3.00 recommended by the<br />
Transportation Division Staff (Staff) in the NOPR. (That is, the towing rates in the Tariff<br />
(attached as Exhibit II) were based on an assumed base rate of $2.50, and therefore wreckers<br />
would not be fully compensated if the surcharge’s base fuel rate were $3.00.) The objection does<br />
not state what the base fuel price should be, but at the April 12, 2011 Hearing, 54 <strong>Towing</strong> stated<br />
that it should remain at the current level of $1.45, which was set in May, 2008. (Fuel Surcharge<br />
Hearing at p. 5)<br />
Final Order Revising Wrecker Tariff<br />
And Amending Rule 18.3.15 NMAC<br />
Case No. 10-00334-TR-R<br />
Page 2 of 8
6. The <strong>Commission</strong> does not grant this objection. The RD states that the base rate of<br />
$2.50 is based on the fuel costs that are collectable under the statewide Tariff rates and the fuel<br />
surcharge. (RD at pp. 36-37) To keep the 2008 cost of $1.45 would result in a recovery above<br />
the actual cost of fuel.<br />
7. The <strong>Commission</strong> has made minor stylistic changes and changes for consistency to<br />
the version of Rule 18.3.15 that is attached to the RD.<br />
8. The <strong>Commission</strong> should approve the amended Rule because the cost of fuel has<br />
greatly increased since the base price of fuel was established in 2008 and because the Rule no<br />
longer applies to motor carriers of persons.<br />
TARIFF<br />
9. 54 <strong>Towing</strong>’s exceptions to the Tariff.<br />
a) 54 <strong>Towing</strong> objects to the elimination of fees for dolly, dolly mileage, tire<br />
changes, and driveshaff removal. These items are the ~ la carte charges that<br />
have led Staff investigators to finding many discrepancies in towing services’<br />
billing and to their receiving many complaints. In simplifying the tariff by<br />
setting a price that compensates towing services for the average cost of a basic<br />
tow and allowing towing services to charge separately only for equipment and<br />
labor not ordinarily needed to provide service, Staff will be able to focus its<br />
resources on enforcing insurance and other registration requirements against<br />
towing services that are currently operating without <strong>Commission</strong> authority and<br />
placing unfair competitive pressure on legal towing services. (TR. at pp. 66-67)<br />
The wreckers have called for better enforcement of illegal operators. (TR. p.<br />
Final Order Revising Wrecker Tariff<br />
And Amending Rule 18.3.15 NMAC<br />
Case No. 10-00334-TR-R<br />
Page 3 of 8
242) Staff included in its average cost of a tow the cost of equipment and labor<br />
ordinarily needed to provide wrecker service and eliminated the costs of those<br />
items as separate charges.<br />
54 <strong>Towing</strong> admits that dollies are used in only 2% of its nonconsensual<br />
tows. One wrecker testified that wreckers do not need to disconnect drivelines<br />
or use dollies. (TR. p. 205) The McKinley County wreckers’ Exhibit stated that<br />
dollies were bought with the trucks but are considered by these wreckers to be<br />
extra equipment. However, Staff testified that extra equipment does not include<br />
equipment that wreckers ordinarily have on their trucks. The category includes<br />
equipment like bulldozers, items that a wrecker might have to buy or rent for an<br />
extraordinary situation. (TR. pp. 132-34) Staff also testified that extra fees for<br />
dollies and driveline disconnections have not been justified by any evidence.<br />
(TR. pp. 129-30; 160) This exception should be denied.<br />
b)<br />
54 <strong>Towing</strong> objects to the elimination of a fee for towing services’ use of fourwheel<br />
drive vehicles. Most towing services do not use four-wheel drive tow<br />
vehicles. (TR. p.80) They use chains when weather requires them. Staff does<br />
not consider chains to be extra equipment. (TR p. 132) If four-wheel drive tow<br />
vehicles are needed to recover damaged vehicles, the cost can be charged under<br />
the extra labor & equipment category. This exception should be denied.<br />
c)<br />
54 <strong>Towing</strong> claims that the administrative charge per tow should be $50. The<br />
RD recommends $25. Currently it is $10. The charge is to offset the cost of<br />
towing services’ obtaining registered owner and lienholder data and notifying<br />
Final Order Revising Wrecker Tariff<br />
And Amending Rule 18.3.15 NMAC<br />
Case No. 10-00334-TR-R<br />
Page 4 of 8
the owner or lienholder of the vehicle’s location and of its having been towed --<br />
activities under the <strong>Commission</strong>’s jurisdiction. Such an inquiry costs $7.00<br />
each time. Some wreckers pay an annual fee to a contractor for this service.<br />
This charge does not include the cost of perfecting the towing service’s lien for<br />
towing charges or proceeding to a sale of the vehicle, activities not under the<br />
<strong>Commission</strong>’s jurisdiction. (TR. at pp. 105, 108, 122-23) This exception<br />
should be denied.<br />
d) 54 <strong>Towing</strong> objects to the elimination of charges for waiting time. Most of the<br />
complaints about towing services involve the padding of waiting time, the time<br />
a wrecker spends at a scene before being allowed to tow a vehicle. Staff<br />
removed waiting time and included it as part of the inclusive rate for hookup<br />
based upon Staff’s surveying and comments from the Investigative Bureau of<br />
the Transportation Staff. The increase in the hookup rate covers the majority of<br />
tows involving waiting time. (TR at p. 46) Staff wanted to reduce disagreements<br />
on billing, which are hard for Staff to regulate since Staff is not actually on the<br />
scene, and no records are kept of towing services’ arrivals and departures. (TR.<br />
at pp. 22, 54-55)<br />
<strong>Towing</strong> services in Albuquerque have addressed the issue with police to<br />
coordinate the efficient movement of vehicles. Pursuant to those discussions,<br />
towing services have asked to be called only when the vehicles are ready to be<br />
moved or, if towing services have arrived prematurely, they leave the scene and<br />
ask to be called when the vehicle is ready to be moved. (TR. at pp. 228-230)<br />
Final Order Revising Wrecker Tariff<br />
And Amending Rule 18.3.15 NMAC<br />
Case No. 10-00334-TR-R<br />
Page 5 of 8
54 <strong>Towing</strong> claims that the Albuquerque scenario is possible, but "in most cases<br />
it does not happen." The objection continues: "In a situation where several hours<br />
of waiting time is needed and in question, the [<strong>Commission</strong>’s] investigator can<br />
verify arrival and completion times with the police dispatch as part of their [sic]<br />
investigation process."<br />
At the hearing, McKinley County tow operators said that almost every<br />
nonconsensual tow involved waiting time and that investigators could verify arrival<br />
and departure times through police dispatch records. (TR at pp. 171-72, 194) Staff<br />
disputed this (TR at pp. 54-55) and asserted that waiting time is not a legitimate<br />
cost. (TR. at p. 123) It is by no means clear that law enforcement makes a record<br />
of when towing services arrive and depart. Given the potential for abuse and the<br />
possibility of towing services making arrangements like the ones in Albuquerque,<br />
this exception should be denied.<br />
10. The <strong>Commission</strong> has made minor stylistic changes and changes for<br />
consistency to the version of the tariff that is attached to the RD.<br />
IT IS THEREFORE ORDERED:<br />
A. The Decretal Paragraphs contained in the Recommended Decision are<br />
incorporated by reference as if fully set forth herein and are ADOPTED, APPROVED and<br />
ACCEPTED as Orders of the <strong>Commission</strong>, except as expressly modified or disapproved herein.<br />
B. 54 <strong>Towing</strong> Corp.’s exceptions are DENIED.<br />
Final Order Revising Wrecker Tariff<br />
And Amending Rule 18.3.15 NMAC<br />
Case No. 10-00334-TR-R<br />
Page 6 of 8
C. The amended Fuel Surcharge Rule, Rule 18.3.15 NMAC, attached to this<br />
Order as Exhibit I is approved and adopted as provided herein.<br />
D. The amended Fuel Surcharge Rule, Rule 18.3.15 NMAC, approved by this<br />
Final Order shall be filed and published in the <strong>New</strong> <strong>Mexico</strong> Register as required by the State<br />
<strong>Rules</strong> Act, NMSA 1978, §§ 14-4-1, et seq., and implementing rules.<br />
E. The revised Statewide Wrecker Tariff attached to this Order as Exhibit II<br />
is approved and adopted as provided herein.<br />
F. This Final Order is effective immediately.<br />
G. The <strong>Commission</strong> in this Order is waiving, in this case only, certain<br />
procedural requirements. This is being done for efficiency and cost savings for the <strong>Commission</strong><br />
because of the large number of agencies and towing services on the service (mailing) list and the<br />
lack of e-mail addresses.<br />
H. This Final Order, along with the Rule and the Tariff, will be posted at the<br />
<strong>Commission</strong>’s website and will be mailed to anyone requesting them.<br />
I. A brief letter, rather than this Final Order along with the Rule and the<br />
Tariff, will be served on all parties on the attached Certificate of Service via email if their email<br />
addresses are known, and if not known, via regular mail. That letter will: 1. Summarize the new<br />
rates that are announced in the Tariff and the $2.50 fuel surcharge base rate and announce when<br />
those rates and that surcharge will become effective; 2. Announce that the Final Order, Rule, and<br />
Tariff have been issued and that they will be posted at the <strong>Commission</strong>’s website and will be<br />
mailed to anyone requesting them; and 3. Be promptly mailed after the filing of this Final Order.<br />
J. After the filing of that letter, this Docket will be closed.<br />
Final Order Revising Wrecker Tariff<br />
And Amending Rule 18.3.15 NMAC<br />
Case No. 10-00334-TR-R<br />
Page 7 of 8
ISSUED under the Seal of the <strong>Commission</strong> at Santa Fe, <strong>New</strong> <strong>Mexico</strong>, this 14th day of<br />
July, 2011.<br />
NEW MEXICO PUBLIC REGULATION COMMISSION<br />
I~ATRICK H. LYONS, CH~fRMAN<br />
JEROME D. BLOCK, VICE CHAIRMAN<br />
A. MARKS, COMMISSIONER<br />
T<br />
COMMISSIONER<br />
BEN L. HA~L, COMMISSIONER<br />
Final Order Revising Wrecker Tariff<br />
And Amending Rule 18.3.15 NMAC<br />
Case No. 10-00334-TR-R<br />
Page 8 of 8
EXHIBIT I<br />
TITLE 18 TRANSPORTATION AND HIGHWAYS<br />
CHAPTER3 MOTOR CARRIER GENERAL PROVISIONS<br />
PART 15 FUEL SURCHARGE FOR CO~ISSION P.,~TE RECULATED<br />
CAP.RIERSWRECKER SERVICES PERFORMING NON-CONSENSUAL TOWS<br />
18.3.15.1 ISSUING AGENCY: <strong>New</strong> <strong>Mexico</strong> <strong>Public</strong> <strong>Regulation</strong> <strong>Commission</strong>.<br />
[18.3.15.1 NMAC -N, 5-15-08]<br />
18.3.15.2 SCOPE: This rule applies to all ce~’~fic"~ted meter carrier: ef perse,.n~ a~nd wrecker services<br />
performing non-consensual tows¯<br />
[18.3.15.2 NMAC - N, 5-15-08; A, da~<br />
18.3.15.3 STATUTORY AUTHORITY: NMSA 1978 Sections 8-8-4, 65-2A-4 and 65-2A-21.<br />
[18.3.15.3 NMAC - N, 5-15-08]<br />
18.3.15.4 DURATION: Permanent.<br />
[18.3.15.4 NMAC - N, 5-15-08]<br />
18.3.15.5 EFFECTIVE DATE: ~.~ay.~,~ ’~ ,w,,,~nn’~ Date unless a later date is cited at the end of a section.<br />
[18.3.15.5 NMAC -N, 5-15-08; A date]<br />
18.3.15.6 OBJECTIVE: The purpose of this rule is to establish a procedure providing fair and reasonable<br />
voluntary fuel surcharges to ce~fic-~te~ meter ca~er~ ef perse,’~ "~a~ wrecker services performing non-consensual<br />
tows.<br />
[18.3.15.6 NMAC - N, 5-15-08; A, date]<br />
18.3.15.7 DEFINITIONS: In addition to the definitions in 1NMSA 1978 Sections 24-10B, 65-2A-3, 65-6-<br />
2, and 18.3.1.7 NMAC, as used in this rule:<br />
A. base year means the reference calendar year used as a base for determining the fuel price increase<br />
percentage in comparison to a current reference price;<br />
B. EIA reference price refers to the weekly gasoline or diesel fuel price for the Rocky mountain<br />
region, as published at the United States department of energy’s official energy information administration website<br />
at http://tonto.eia.doe.gov/oog/infogdu/gasdiesel.asp, or such other address on which that same information may be<br />
displayed by the energy information administration in the future;<br />
C. fuel price increase percentage is the percentage by which the current EIA weekly reference price of<br />
fuel has risen in comparison to the base year;<br />
D. fuel surcharge program means the procedures and requirements set forth in this rule, by which<br />
ce~ificate~ meter carrier~ efper~ens and wrecker services performing non-consensual tows may implement limited<br />
~ncreases ............. in their rates, reflecting the changing price of fuel, without a formal proceeding before the<br />
commission;<br />
E. maximum chargeable rates are highest rates that may be charged by a motor carrier under the fuel<br />
surcharge program, pursuant to a current reference price;<br />
F. motor carrier fuel expense percentage means the percentage derived by dividing a motor carrier’s<br />
fuel expense attributable to a certificated service by the motor carrier’s gross revenues derived that same certificated;<br />
G. participating motor carrier means a motor carrier of persons which has elected to participate in the<br />
fuel surcharge program;<br />
H. rate increase percentage is the potential percentage increase in rates available to a particular motor<br />
carrier.<br />
[18¯3.15.7 NMAC - N, 5-15-08; A, date]<br />
18.3.15.8 TOWING SERVICES PERFORMING NON-CONSENSUAL TOWS: Motor carriers<br />
performing non-consensual towing services ~hi~h-that choose to participate in the fuel surcharge program shall<br />
comply with the following adjustment formula:<br />
Page I of 2
A. fuel adjustment per mile = (the current EIA reference price for diesel or gasoline fuel minus<br />
$4-A-552.50) divided by 5, where 5 is a constant for the miles per gallon and $q-4~. $2.50 is the base cost per gallon<br />
for fuel conclusively assumed and used in this formula for wrecker vehicles;<br />
B. fuel surcharge = fuel adjustment per mile multiplied by total distance traveled, included both<br />
loaded and unloaded miles;<br />
C. the result of the "fuel adjustment".’- formula defined in this section shall be applied by participating<br />
motor carriers as an addition to, or a~ a ~ub~act~.en from, the overall customer bill for fuel costs, as may be<br />
applicable for EIA reference diesel or gasoline prices above an~ below $1 .d5 $2.50 per gallon;<br />
D. the fuel adjustment shall be stated as a separate charge on the charge ticket or invoice, and shall<br />
include the surcharge amount per mile and total miles charged for fuel.<br />
E. any EIA reference price below $2.50 per gallon shall not require a refund on the charge ticket or<br />
invoice.<br />
[18.3.15.8 NMAC - N, 5-15-08; A, date]<br />
HISTORY of 18.3.15 NMAC: [RESERVED]<br />
Page 2 of 2
EXHIBIT II<br />
NEW MEXICO<br />
PUBLIC REGULATION COMMISSION<br />
STATEWIDE<br />
WRECKER TARIFF<br />
EFFECTIVE DATE<br />
ISSUED BY:<br />
TRANSPORTATION DIVISION<br />
PUBLIC REGULATION COMMISSION<br />
P.O. BOX 1269<br />
SANTA FE, NEW MEXICO 87504-1269<br />
(505) 827-4519 FAX (505) 827-4023
NEW MEXICO<br />
PUBLIC REGULATION COMMISSION<br />
STATEWIDE<br />
WRECKER TARIFF<br />
SCOPE:<br />
This Tariff govems rates for nonconsensual towing between points and places in <strong>New</strong> <strong>Mexico</strong> by<br />
wrecker, of wrecked, damaged, disabled, or abandoned motor vehicles and their cargo, and<br />
inoperative and replacement vehicles and parts and equipment for the above-described vehicles,<br />
vehicles the driver of which has been declared unable to drive by a duly authorized law<br />
enforcement officer, and vehicles repossessed, confiscated or seized by any lawful authority.<br />
ALL RULES AND REGULATIONS THAT GOVERN WRECKER SERVICES IN THE<br />
STATE OF NEW MEXICO ARE CONTAINED IN THE PUBLIC REGULATION<br />
COMMISSION MOTOR TRANSPORTATION RULES.<br />
DEFINITIONS OF TERMS USED IN THIS TARIFF<br />
AFTER HOURS means 5:00 pm to 8:00 am, Monday through Friday & Weekends.<br />
ADMINISTRATIVE CHARGE means the total allowable fee for a wrecker service to obtain<br />
ownership and lienholder information from the Motor Vehicle Division of any state and to send<br />
written notification of possession of the motor vehicle by the wrecker service to the registered<br />
owner and any lienholders.<br />
DAY means a calendar day which begins at 12:00 midnight and ends at 11:59 pm.<br />
DELIVERY means placing a vehicle in the actual possession of the owner or the owner’s agent.<br />
EXTRA EQUIPMENT and LABOR means equipment which a wrecker service does not<br />
ordinarily need to provide its authorized service and labor not ordinarily employed by the<br />
wrecker service but which is necessary to provide adequate service in a unique or exigent<br />
situation.<br />
HOLIDAYS mean those days designated as legal holidays or as public holidays by the<br />
Legislature of the State of <strong>New</strong> <strong>Mexico</strong> in NMSA 1978 Sections 12-5-1 et seq.<br />
NONCONSENSUAL TOW means the compensated transportation of a motor vehicle by a<br />
towing service, if such transportation is performed at the request of a law enforcement officer or<br />
without the prior consent or authorization of the owner or operator of the motor vehicle.<br />
NORMAL BUSINESS HOURS means nine consecutive hours from 8:00 a.m. to 5:00 p.m. on<br />
every weekday excluding holidays.<br />
RECOVERY is limited to the recovery of any vehicle that is overturned or off the main road or<br />
highway in such a way that a winch would be required to reposition the vehicle before loading it.<br />
STORAGE means the safe keeping of motor vehicles entrusted to the custody of a towing<br />
service.<br />
WRECKER EQUIPMENT and LABOR means equipment and labor which is employed by<br />
the wrecker service.<br />
2
GENERAL PROVISIONS<br />
All rates are stated in terms of United States currency. Invoices are payable when the service is<br />
rendered by the wrecker service, unless other arrangements have been made in advance.<br />
Distance rates are based on the distance from point of origin to final destination, computed in<br />
accordance with the Motor Transportation <strong>Rules</strong>. Distance rates are in addition to other charges<br />
provided for in this tariff.<br />
When a wrecker service is called, but not used through no fault of the wrecker service, charges<br />
for the first mile and deadhead mileage will apply.<br />
Rates for extra equipment are charged at a reasonable rental rate regardless of whether the<br />
equipment is owned or rented.<br />
Rates for extra labor apply from the time the extra labor is assigned to the wrecker service until<br />
released from the service, either at the wrecker service’s terminal or on location if it is assigned<br />
to another wrecker service.<br />
A motorcycle shall be stored in a Type 2 or 3 storage facility only. Charges for storing a<br />
motorcycle in a Type 3 storage facility shall occur only with the owner’s prior consent or if<br />
ordered by a law enforcement officer.<br />
Delivery of vehicles or allowing personal property to be viewed or taken by the registered owner<br />
or lienholder after hours or on <strong>New</strong> <strong>Mexico</strong> State Holidays is optional at the discretion of the<br />
towing service.<br />
All bills must be itemized to show each charge for any of the items listed below.
STATEWIDE WRECKER TARIFF<br />
First Mile/Hookup a<br />
Mileage (per mile), 2 to 25 miles<br />
25 miles and over (per mile)<br />
Excess Deadhead (per mile)<br />
Recovery (per hour subject to terms in<br />
note below) 2<br />
CLASS A/B<br />
$100.00<br />
$5.00<br />
$3.50<br />
$3.00<br />
$75.00<br />
CLASS C<br />
$150.00<br />
$8.00<br />
$5.00<br />
$4.00<br />
$150.00<br />
CLASS D<br />
$225.00<br />
$15.00<br />
$10.00<br />
$6.00<br />
$250.00<br />
Extra Equipment<br />
Reasonable cost<br />
of rental in<br />
Recovery<br />
situations<br />
Reasonable<br />
cost of rental<br />
in Recovery<br />
situations<br />
Reasonable cost<br />
of rental<br />
Extra Labor per hour (hour minimum)<br />
15 minute increments after 1 st hour<br />
$30.00<br />
$30.00<br />
$30.00<br />
STORAGE CHARGES PER DAY<br />
TYPE 1<br />
TYPE 2<br />
TYPE 3<br />
$1.00 per day per Ft. exceeding 25’<br />
$10.00<br />
$15.00<br />
$20.00<br />
$15.00<br />
$20.00<br />
$25.00<br />
$20.00<br />
$25.00<br />
$30.00<br />
DELIVERY CHARGE<br />
After hours or NM State Holidays $50.00 $50.00 $50.00<br />
ADMINISTRATIVE CHARGE $25.00 $25.00 $25.00<br />
"First mile/hookup" charge includes mileage less than 2 miles.<br />
2 Recovery charges shall be calculated as follows: Hourly rate not to exceed 10 hours. Time<br />
must be acknowledged by law enforcement officer at scene.