STATEMENT OF SCOPE
Department of Transportation
Relating to:
|
Motor Carrier Safety Assistance Program (MCSAP) Review for the State of Wisconsin by the Federal Motor Carrier Safety Administration (FMCSA) July 14-15, 2009
.
|
1. Finding/nature of emergency (Emergency Rule only):
N/A
2. Detailed description of the objective of the proposed rule:
Following a program review of Wisconsin laws and regulations
, the Federal Motor Carrier Safety Administration
concluded
that
this state
does not
a
ppropriately adopt and enforce s
tate safety laws and regulations that are compatible with the Federal Motor Carrier Safety Regulations
(FMCSRs)
.
Compatibility of laws is necessary to ensure this state’s continued receipt of federal funds for commercial motor carrier safety and enforcement activities under the Motor Carrier Safety Assistance Program (MCSAP). Wisconsin receives approximately $4 million each fiscal year
in federal MCSAP funds. This rulemaking is intended to adopt administrative rules that are compatible with those FMCSRs.
This rulemaking also proposes several additional changes that did not originate from the FMCSA review.
3. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
49 CFR 390.3
(f) – School Bus Operations
.
Wisconsin’s exemption in Trans 327.09 (1) of intrastate school buses from its adoption of the FMCSRs when the bus is being used for authorized educational extracurricular or charter activities by a non-governmental entity is not compatible with 49
Code of Federal Regulations (
CFR
)
390.3(f).
49 CFR 390.23
– Relief f
rom Regulations
.
The State’s exemption of intrastate drivers from its adoption of driver qualifications and hours of service (HOS) regulations during emergencies, in Trans 327.09 (6) is not compatible with
49 CFR 390.23
.
The emergency must be declared by certain specified Federal, State, or local officials. The Wisconsin regulations allow the motor ca
rrier to declare the emergency.
49 CFR 391
– Driver Qualifications
.
The State’s exemption in Trans 327.09 of intrastate drivers holding a Wisconsin CD
L issued prior to July 29, 1996,
from the driver qualification requirements contained in
49 CFR 391
is not compatible with the FMCSRs
.
49 CFR 391.11
(b
)(
1) – Driver Age
.
The State’s exception for intrastate drivers of
a commercial motor vehicle
(
CMVs
)
in Trans 327.03 from the minimum age requirements contained in
49 CFR 391.11
(b)(1) is not compatible with the FMCSRs.
States may not allow drivers younger than 18 years old to operate a
CMVs
as defined in
49 CFR 390.5
.
Wisconsin does require that residents must be 18 years old to hold
a commercial driver
license (CDL).
Nowhere else in Wisconsin statutes or regulations is the minimum age of a n
on-CDL driver of CMV
addressed.
49 CFR 395
– Hours of Service
.
The State’s exemption in Trans 327.09 (4) of intrastate drivers driving motor vehicles having a gross vehicle weight rating (GVWR) of less than 26,001 pounds from its adoption of the HOS requirements is not compatible with
49 CFR 395
if the
vehicles are
transporting 16 or more pas
sengers including the driver
,
and the vehicles
require
s
an
Hazardous Material
placard
.
49 CFR 395.1
(e), 395.3, and 395.8 – Records of Duty Status and HO
S.
The State’s regulations in Trans 327.03 (10), 327.05 (3), and 327.09 concerning intrastate HOS and records of duty status (RODS) are not compatible with
49 CFR 395
.
Trans. 327.03(10)
excepts
49 CFR
395.1
(e)
, and so fails to adopt
some
required regulations
of
that section
.
Wisconsin does not exclude a driver salesperson from the requirements to return to his/her work reporting location within 12 hours.
Wisconsin does not require that a driver used for the first time or intermittently to account for the previous 7 days on duty time.
Drivers are not allowed to end any period of 7 or 8 days until after 34 or more consecutive hours off duty as provided in
49 CFR 395.3
. (New regulations
concerning hours of service at
49 CFR 395.3
(2
)(
ii) that
went into effect after this audit was conducted
are not part of this rulemaking. Those revisions may be adopted in a subsequent rulemaking.)
T
he wording i
n Trans. 327.03(10) (“and maximum number of hours identified in
49 CFR
395.3
is adopted as follows:
”) is ambiguous, and could reasonably be read to mean that not
all of
49 CFR
395.3
is adopted by Trans. 327
.
This rulemaking will clarify that
Wisconsin
adopts
all of
49 CFR
395.3
,
except for the maximum number of hours as spelled out in Trans. 327.
03(10) (a), (b), (c), and (d).
Trans 327.09(5)
exempts drivers from certain record keeping requirements if they are
within an area having a 150 air mile radius from the drivers’ home post office
or
from the official worksite.
To be compatible with FMCSRs this distance should be measured,
“from the normal work reporting location”
,
as
set forth
in
49 CFR
395.1
(e
)(
i).
Trans. 327.03(10) does not adopt
49 CFR
395.8
(“Driver’s record of duty status”).
Trans
327.05 (3) has a note at the bottom which does require a driver to document information such as total miles driven each day,
to make
entries in
the
driver
’
s own handwriting,
and to make entries
on a specific
grid as required by
49 CFR 395
.8
(f) and (g).
When a driver does not meet the mileage exemption (150 air miles) this information must be documented.
This rulemaking will clarify the application of those requirements to drivers exempted from records of duty status.
Additional
proposed
changes that did not originate from FM
CSA review
:
Define
“planting and harvesting season”
to mean
the period of time beginning March 15 through December 15 of each year
, consistent with
Trans 325.01.
Currently
, “planting and harvesting season” is not defined f
or i
ntrastate transportation
.
Add an exemption from Trans 327.03(10), hours of service, to
Trans 327.09(4)
which are vehicle types exempted from federal hours of service
limitations.
Those vehicles are currently exempted only from the provisions of Trans 327.05, driver hours of service.
Repeal references to
49 CFR
395.1
(h) & 395.1(i) from 327.03(10)
, which
exempt hours of servic
e for Alaska and Hawaii drivers and have no application in this state.
Remove
the exemption from hours of service requirements for passenger vehicle drivers, by deleting
49 CFR
395.5
from
Trans
327.03(10).
Add
‘
gross combination weight rating
’
to exemptions
in
Trans
327.09(2
)
(
a)
and (4)
(b)
, c
onsistent with
definition of commercial motor vehicle at
49 CFR
390.5
.
Trans
327.09 (2
)(
a) needs to be clarified to inc
lude vehicles designed to carry 16-passengers, c
onsistent
with state statute 343.04(2)(d).
4. Detailed explanation of statutory authority for the rule (including the statutory citation and language):
Wisconsin Statutes,
s
s.
194.38 (1
)(
b)
and
(2)
. Also, Wisconsin Statutes, ss.
110.07(1
)(
a)1.
and
(3)
(“Traffic officers; powers and duties”), 110.075 (
“Motor vehicle inspection”),
194.43 (“Private motor carriers; regulation by department”)
, 343.02(1) (“Administration of driver license law”) and (“Persons not to be licensed”)
:
194.38
Regulatory
powers of department
.
(1) It shall be the duty of the department:
(b) To prescribe rules and regulations as to safety of operations and the hours of labor of drivers of motor vehicles operated under the authority of this chapter.
(2) Nothing in this section shall permit the department to promulgate any rule under which the provisions of
49 CFR 390
,
391
,
392
,
395
, and
397
are applicable to, or enforceable with respect to, any farm truck or dual purpose farm truck combined with any semitrailer or farm trailer, or any vehicle combined with a horse trailer, if the vehicle combination's gross combination weight rating, registered weight, and actual gross weight do not exceed 26,000 pounds, the vehicle combination does not include a commercial motor vehicle described in s.
340.01 (8) (c)
or
(d)
, and the vehicle combination is operated solely in intrastate commerce.
110.075(6)
The secretary shall set standards and adopt rules to establish a plan of inspection to implement the inspection program provided by this section. Nothing in this section shall permit the department to promulgate any rule under which the provisions of
49 CFR 393
and
396
are applicable to, or enforceable with respect to, any farm truck or dual purpose farm truck combined with any semitrailer or farm trailer, or any vehicle combined with a horse trailer, if the vehicle combination's gross combination weight rating, registered weight, and actual gross weight do not exceed 26,000 pounds, the vehicle combination does not include a commercial motor vehicle described in s.
340.01 (8) (c)
or
(d)
, and the vehicle combination is operated solely in intrastate commerce.
194.43 Private motor carriers; regulation by department.
The department may regulate the operations of private motor carriers, including the power to designate from
time to time the public highways over which private motor carrier vehicles may or may not be operated and to designate the time that such vehicles may or may not be operated thereon so as to prevent congestion which shall affect the safety of persons and property upon such public highways; to require the display of satisfactory evidence that such vehicle is not being used for common or contract motor carrier purposes; and to prescribe reasonable and necessary rules and regulations for the safety of operation of private motor carriers.
343.02(1)
The department shall administer and enforce this chapter and may promulgate for that purpose such rules as the secretary considers necessary. Rules promulgated under this chapter may not conflict with and shall be at least as stringent as standards set by the federal commercial motor vehicle safety act,
49 USC 31301
to
31317
and the regulations adopted under that act.
343.06(2)
The department shall not issue a commercial driver license, including a renewal or reinstated license, to any person, or reinstate a person's authorization to operate a commercial motor vehicle, during any period of disqualification under s.
343.315
or
49 CFR 383.51
, under the law of another jurisdiction disqualifying a person from operating a commercial motor vehicle under circumstances similar to those specified in s.
343.315
or
49 CFR 383.51
, or under a determination by the federal motor carrier safety administration that the person is no longer qualified to operate a commercial motor vehicle under
49 CFR 391
, or to any person whose operating privilege is revoked, suspended, or canceled. Any person who is known to the department to be subject to disqualification as described in s.
343.44 (1) (d)
shall be disqualified by the department as provided in s.
343.315
.
5. Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule:
400 hours
6. List with description of all entities that may be affected by the proposed rule:
Wisconsin-based motor carriers and enforcement will be affected by this rule change. Some of these findings by the FMCSA review are substantial and will have an effect on Wisconsin-based motor carriers, particularly intrastate carriers whose entire operations are within this state.
7. Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:
The changes proposed will conform to any federal regulations that exist in Title 49, Code of Federal Regulations
, and to resolve the incompatibilities noted by FMCSA following its
review
of this state’s laws and regulations
.
This rulemaking also proposes several additional changes that did not originate from the FMCSA review.
8. Anticipated economic impact of implementing the rule (note if the rule is likely to have a significant economic impact on small businesses):
There has been no analysis to determine the effect on small business as the majority of the rule changes in this proposal will not
impact them in a significant way.
The Department anticipates the clarifications made to the rule will make the state requirements easier to understand, and therefore,
result in
better compliance
.
Th
e most significant impact
is
the
rule change
which
will require school bus operators to comply with the medical provisions found in 49CFR391. Although th
is proposal is
more restrictive
than the previous Trans 112 requirements
the
y will only impact transportation when operating for authorized educational extracurricular or charter activities.
The state is required to adopt this language or federal funding would be in jeopardy.
Agency Contact Person:
Captain Brian Ausloos
State of Wisconsin Department of Transportation
Division of State Patrol
4802 Sheboygan Avenue Room 551
Madison, Wisconsin 53705
Phone: 608-709-0070
Signed this ____ day of
August
2015
________________________________________________
Mark Gottlieb, P.E.
Secretary
State of Wisconsin Department of Transportation
