CR 23-043 Rule Text

DEPARTMENT OF TRANSPORTATION

PROPOSED ORDER AMENDING PERMANENT RULE

The Wisconsin Department of Transportation proposes an order to:

Repeal ss. Trans 129.09 (1) (e) and (Note), (g), (2) (f), 129.12 (1), 129.15 (1) (c) 6., 129.19 (2), 129.21 (1) (b); Renumber and amend ss. Trans 129.09 (1) (f), 129.10 (1) and (Note), 129.19 (1) Amend ss. Trans 129.01 (intro.), (2), and (4), 129.03 (title), (2), 129.05 (intro.) and (2), 129.07 (2) (a), 129.09 (title), (1) (intro.), (a), (b), (d) (intro.), and 3., (2) (b), 129.10 (title), (3) (intro.), (a), and (3) (b), 129.11 (1) (a) and (2), 129.12 (title) and (3), 129.15 (1) (Note), (2) (b) 4., (c) 1., 4., (3) (d), (4) (b) and (Note), (5), and (7), 129.16, 129.17, 129.18, 129.20 (title), (1), (2) (intro.), (3) (intro.), (4) (intro.), and (5) (intro.), 129.21 (1) (intro.), 129.21 (2) (intro.), 129.22; Repeal and recreate ss. Trans 129.02 (2), Trans 129.03 (1) (a) and (b), 129.04, 129.08, 129.09 (2) (intro.), (a), and (e), 129.10 (2), (4), and (5), 129.13, 129.21 (3); and to Create ss. Trans 129.01 (5), 129.07 (3), 129.09 (2) (g), (4), (5), and (6), 129.10 (3) (am), (c) (Note), Trans 129.10 (6), (7), and (8), 129.11 (1) (c), 129.15 (3) (g), (8), and (Note), 129.21 (4) (Note), and 129.23, relating to motorcycle licensing and courses, and affecting small businesses.

The Statement of Scope for this permanent rule, SS 087-21, was approved by the Governor on October 7, 2021, published in Register No. 790A3 on October 18, 2021, and approved by Secretary of the State of Wisconsin Department of Transportation Craig Thompson, as required by s. 227.135 (2), Stats., on September 3, 2021.

The state of Wisconsin Department of Transportation (“department”) proposes an order to amend permanent rule ch. Trans 129, relating to motorcycle licensing and courses. The analysis below was prepared by the department.

ANALYSIS

1. Statute(s) Interpreted: Sections 85.30, 343.06 (1) (c), 343.07 (4) (b), 343.16 (1) (a), and 343.32 (4), Stats.

2. Statutory Authority: Sections 85.16 (1), 85.30, 227.11, 343.06 (1) (c), 343.07 (4) (b), 343.16 (1) (a), and 343.32 (4), Stats.

3. Explanation of Agency Authority: Section 85.30, Stats., charges the department with responsibility for creating a motorcycle, moped, and motor bicycle safety program. The statute requires that the program include operational skills training, safety education and public awareness, and such other elements as the department deems desirable. It also allows the department to make grants under this program for establishment of courses which further the aims of this program. The statute directs the department to adopt rules that implement the statute.

Section 343.06 (1) (c), Stats., requires any person under age 18 to pass a motorcycle rider course as a precondition of obtaining a “Class M” endorsement permitting the operation of motorcycles on their driver license. The statute requires the department to prescribe rules for the licensing of schools and instructors under that statute. In addition, the statute requires the department to define by rule persons who may be exempted from the pre-license class completion requirement.

Section 343.07 (4) (b), Stats., prohibits the department from issuing more than 3 instruction permits to a rider unless the rider completes a rider education course. This statute also requires the department to define by rule who may be exempted from the statute’s class completion requirement.

Section 343.16 (1) (a), Stats., prohibits the department from administering a driving skills test to a person applying for authorization to operate motorcycles if the person has failed 2 driving skill tests, unless the person has successfully completed a rider education course. Like ss. 343.06 (1) (c) and 343.07 (4) (b), Stats., s. 343.16 (1) (a), Stats., requires the department to define by rule who may be exempted from its class completion requirement.

Section 343.32 (4), Stats., provides that in calculating the number of demerit points accumulated by a driver as a result of traffic law convictions, the department shall reduce the points accumulated from offenses committed while riding a motorcycle if the driver completes a motorcycle rider course. This rulemaking sets forth the specific coursework that qualifies a driver for such a demerit point reduction.

4. Related Statutes or Rules: ss. 343.05 (3) (b), 343.07 (4), and 343.16 (2) (cm), Stats.

5. Plain Language Analysis:

This rulemaking is intended to consolidate and simplify the department’s motorcycle instruction program. When the program was first created, ch. 343, subch. VI, Stats., required motorcycle rider schools be licensed by DMV as driving schools and that its instructors be licensed as DMV driving instructors. On top of those licensing requirements, consistent with the motorcycle testing waiver provisions of ss. 343.16 (2) (cm) and 343.32 (4), Stats., motorcycle driving schools and instructors needed to meet additional requirements to qualify courses for skills test waivers or demerit point reduction. Finally, s. 343.66 (1) (b), Stats., as amended by 2005 Wis Act 397, required all driving instructors to meet certain criminal background requirements and required the department to establish criminal background requirements by rule.

To accommodate these varied requirements, ch. Trans 129 evolved to require multiple authorizations and licenses to qualify for the various licenses and authorizations needed to be licensed as a motorcycle instructor or school, or to participate in the demerit point reduction or skills test waiver programs.

This rulemaking is intended to update ch. Trans 129 to reduce the complexity of the program by eliminating separate authorizations for skills test waiver and demerit point reduction programs, and to consolidate all requirements into a single license. The proposed rule would retain the criminal background check requirements for instructors, bring the rule into conformance with the controlling statutory requirements, and reflect changes in curriculum and practices recommended by the Motorcycle Safety Foundation.

The Motorcycle Safety Foundation is a nationally recognized, not-for-profit organization that is sponsored by various motorcycle manufacturers and distributors. It produces a widely-used series of courses in motorcycle safety and operation. It currently provides the materials and curriculum taught at motorcycle rider schools in this state.

The foundation’s rider training curricula is used in many states and by the U.S. military to instruct novice and experienced riders. The curricula are based on in-depth research into adult learning and the specific motor and attention skills needed for successful motorcycle operation. Information about the foundation’s research may be accessed at https://www.msf-usa.org/research.aspx#/ home. The foundation fosters a "ride safe" attitude that promotes lifelong learning for motorcyclists. The foundation does not advertise or direct participants to its sponsors in its materials or curricula. Its courses do, however, promote rider use of motorcycle safety equipment such as helmets and abrasion resistant clothing.

The department has used the Motorcycle Safety Foundation’s curricula and practices as the basis for its rider education programs since the early 1980s. The fundamental courses for the program are the basic rider course and basic course for experienced riders, which teach riders basic operational skills. The courses’ curriculum is fairly rigid in requiring certain skills be taught in a specific order with mandatory rest periods in order to provide optimal conditions for adults to learn the complex physical tasks of shifting and driving a motorcycle. The classroom portion of the basic rider courses is comprised of an online “e-course” provided by the Motorcycle Safety Foundation that students should take before beginning range or classroom instruction, and a classroom portion that expands on that learning and includes instructional information that is statutorily mandated as part of the instruction.

2005 Wisconsin Act 397 amended ch. 343, subch. VI, Stats., to exclude motorcycle rider courses and persons teaching those courses from the commercial driving school requirements set forth in that subchapter. This rulemaking updates outdated references to the licensing requirements and refers to the replacement licensing scheme, set forth in s. Trans 129.19, created in January 2008 (CR 07-084). That same rulemaking created s. Trans 129.20, which excludes persons convicted of certain criminal offenses from teaching a rider course. The list of criminal offenses in existing Trans 129.20 is virtually identical to the list of offenses that disqualify teachers from commercial driving schools under s. Trans 105.035. Although disqualifying motorcycle instructors with problematic criminal histories is not statutorily mandated under s. 343.66 (1) (b), Stats., the department proposes in this rulemaking to retain the background check requirement as part of its motorcycle instruction licensing program to provide similar safety assurances to motorcycle instruction students as other driver training school students.

Throughout this rule, the term “Type 1 motorcycle” is replaced with “motorcycle,” consistent with changes to the motor vehicle code made by 2019 Wisconsin Act 50 that eliminated the use of the term.

This rulemaking proposes to rewrite s. Trans 129.01 (2) to clarify that this rule sets standards for motorcycle rider education providers and coaches. Section Trans 129.01 (5) is created to clarify that the rule sets standards for demerit point reduction under s. 343.32 (4), Stats. That statute and s. Trans 101.07 (1) (d) provide that the department may reduce demerit points accumulated by a driver from motorcycle traffic offenses if the person attends a rider course approved by the department. This rulemaking proposes to allow the point reduction for attending the basic rider course or the basic course for experienced riders. It does not propose to allow demerit point reduction for other Motorcycle Safety Foundation approved courses such as the Basic Bike Bonding or Ultimate Bike Bonding rider courses because those course curricula lack the depth of safety-related instruction that is part of the basic rider course.

The proposed rule repeals and recreates s. Trans 129.02. The course referred to as the “experienced rider course” in existing s. Trans 129.02 (2) (c) is renamed the “basic course for experienced riders” to better describe the nature of the course and clarifies that it is a course that may qualify a rider for a skills test waiver. This section is not substantially changed. The course essentially covers the same content as a basic rider course and requires completion of a similar online class. This course, however, spends less time on elementary rider instruction such as shifting, because it is designed for participants who come to class with sufficient operational skills to maneuver a motorcycle. For example, a person who races dirt bikes as a hobby, and then wishes to be licensed for on-road operation of a motorcycle, will not need the very basic “how-to-shift” instruction that is part of the basic rider course. Nonetheless, that rider will need the same safety instruction as any other rider who is new to on-highway riding.

More information about the basic rider course (“BRC”) and basic course for experienced riders (“BRC2”) may be found online at the Motorcycle Safety Foundation’s web page at https://www.msf-usa.org/students.aspx.

This rulemaking repeals and recreates s. Trans 129.03 (1) (a) to eliminate the requirement that a rider hold a motorcycle instruction permit as a condition of receiving a waiver. For the waiver, motorcyclists are still required to pass the DMV knowledge test for motorcyclists, which precedes issues of an instruction permit. But, in as much as basic rider courses are taught on closed ranges where a driver license is not required to operate the vehicle, the department sees no reason to require a driver to pay the fees to renew or obtain a motorcycle instruction permit once the person has completed the required DMV knowledge testing and a basic rider course. The change to s. Trans 129.03 (1) (a) will permit DMV to add the motorcycle class to the driver’s regular license without having to issue an instruction permit, which will reduce costs to the driver and reduce work for DMV.

Section Trans 129.03 (1) (b) is rewritten to clarify that completion of either a basic rider course or basic course for experienced riders will qualify a rider for a skills test waiver. The changes also authorize the department to establish systems for electronic reporting of demerit point reduction applications and skills test waivers. Proposed amendment to s. Trans 129.07 (2) (a) and creation of s. Trans 129.08 (3) propose similar amendments related to potential electronic reporting in the future. Section Trans 129.03 (1) (b) also restricts the “Class M” operating privilege of a person who completes a motorcycle instruction course skills test on a 3-wheel vehicle to operating 3-wheeled vehicles. The restriction can be removed by retaking and passing the test on a 2-wheeled motorcycle. The nature and skills required for 3-wheeled operation differ so substantially from those needed for 2-wheel operation that the motorcycle instruction community recommended that the restriction be imposed absent a demonstration of capability driving a 2-wheel motorcycle.

Section Trans 129.03 (2) is amended to allow a person who has failed a DMV skills test to qualify for a skills test waiver if they successfully complete a basic rider or experienced rider course following their DMV skills test failure. The department believes persons who fail a DMV skills test, regardless of their training level before that failure, should be encouraged to develop their skills through one of these courses.

Section Trans 129.04 is rewritten for readability and does not substantively change the rule. The rule exempts persons licensed to operate motorcycles in other jurisdictions who move to Wisconsin, persons living more than 50 miles from a rider education facility, and persons seeking only restricted or special restricted licenses from the provisions of ss. 343.06 (1) (c), 343.07 (4) (b), or 343.16 (1) (a) 3., Stats., that require some riders to attend a basic rider course.

Changes to s. Trans 129.05 (2) clarifies that the basic course for experienced riders can qualify a rider under age 18 for a motorcycle instruction permit. Section 343.06 (1) (c), Stats., requires drivers under age 18 to complete a motorcycle rider course as a precondition of receiving “Class M” (motorcycle) driving privileges. Students in the basic course for experienced riders class are required to prove their capabilities prior to on-course instruction under s. Trans 129.09 (2) (f). They are also tested on their skills at the end of the program.

Sections Trans 129.07 (2) (a) is amended, and s. Trans 129.13 (4) is created to clarify that rider coaches may issue skills test waiver authorizations only to students who complete a course they taught, and that if a teacher is unavailable to issue or reissue an authorization, another authorized official at the school may perform that function. Under s. Trans 129.07 (2) (a), riders who take out-of-state classes do not need to obtain skills test waiver forms from a Wisconsin rider coach. Instead, they must submit proof of course completion in the other state to DMV when seeking to add “Class M” privileges on their license.

Section Trans 129.08 (2) (d) is recreated, and s. Trans 129.13 is created to change the frequency and timing of instructors and rider schools reporting course completion to the department. The existing rule requires year-end reporting, which has proved problematic for a number of reasons. First, the department has often struggled to get annual reports from schools or instructors who are not organized record keepers. Second, the year-end reports do not assist the department in determining course demand and instruction needs during the riding season. Proposed s. Trans 129.13 requires regular reporting of students class completion, which should provide data to the department for that purpose. Regular reporting will assist the department in making program decisions, such as safety programming and grant decisions, based on data received from schools. The department believes the change may also improve the accuracy and reliability of the data received from instructors and schools, as well as improve overall compliance with the reporting requirement. Student completion data is also useful for quality assurance and to detect potential discriminatory practices.

The rulemaking proposes to create s. Trans 129.08 (1) (e) to clarify that only persons who are both licensed and have authorization or certification from the curriculum provider may provide classroom or range instruction. This is a requirement for use of the Motorcycle Safety Foundation curriculum and has been department practice for decades.

The department proposes to recreate ss. Trans 129.08 (3) and 129.10 (5) (c) to sync instructor and school licensing with the Motorcycle Safety Foundation’s authorization periods. The department believes that if these various authorizations are renewed at the same time, the administrative bureaucracy for instructors and schools will be greatly reduced. Because the Motorcycle Safety Foundation program is national, the department proposes to sync state timing to the foundation’s renewal schedule, which is currently based on the 2-year anniversary of a rider coach receives initial authorization to teach classes from the foundation. The department intends to begin the new timing scheme as soon as practical after adoption of the proposed rule, and to complete the transition within 3 years after beginning the transition.

Section Trans 129.09 reflects the requirement for basic rider courses to adhere to the Motorcycle Safety Foundation curriculum. The requirement that riders complete the online course as part of the class is incorporated into the course requirements. The “50% of course is range instruction” requirement is repealed in favor of a more flexible requirement that the entire curriculum of range instruction be taught. Under the existing rule, in order to comply with the 50% requirement, instructors technically must cease providing classroom instruction if it will exceed the time taken for range instruction, which is impractical and is therefore being removed from the rule. The department does not want to discourage instructors from providing additional classroom discussion or training when circumstances warrant it.

This rulemaking proposes to amend s. Trans 129.09 (1) (d) 3. to clarify that shifting is a skill that must be taught only when instructing students riding vehicles equipped with manual transmissions. The physical skill of shifting is not taught to a student taking a basic rider course on a vehicle equipped with an automatic transmission, such as a scooter. Online and rider coach-provided range instruction discuss the mechanics of shifting, but practical training can only occur on standard transmission-equipped vehicles.

Section Trans 129.09 (2) amends the range and classroom requirements applicable to the basic course for experienced riders. As with the basic rider course, the “50% requirement” is removed from the rule to dedicate sufficient time to range training so students may develop skills in accordance with curriculum requirements. That may be less range time than the basic rider course because participants in this class already know the basics of handling a motorcycle. Section Trans 129.09 (2) (f) codifies the initial evaluation exercise of the basic course for experience riders, which determines whether the participants have existing knowledge of motorcycle operation sufficient for them to safely participate in the range portion of the course. Students who lack the needed skills are not permitted to continue and are counselled to take the basic rider course, which teaches those skills, instead.

Course size restrictions and the requirement to complete knowledge and skills testing for the basic rider course and the basic course for experienced rider are moved to s. Trans 129.09 (3) and (6) by renumbering and amending existing s. Trans 129.09 (1) (f), repealing existing s. Trans 129.09 (1) (g), (2) (f), and (g), and creating s. Trans 129.09 (6) (intro.). Like the current rule, proposed s. Trans 129.09 (3) retains the requirement that class sizes are restricted to 12 students on the range and 24 in the classroom. Section Trans 129.09 (6) (intro.) requires all students be afforded the opportunity to participate in knowledge and skills testing as part of a course. Parts (6) (a) and (b) provide that passing the knowledge test alone is sufficient to qualify a rider for a demerit point reduction, and that passing both tests is required for a skills test waiver.

Section Trans 129.09 (5) is amended to reflect the process used when riders are unable to complete initial instruction on shifting or basic motorcycle control sufficient for them to safely participate in more advanced range exercises. Occasionally, there are students who are simply unable to pick up the skills at their initial training session and who need to retake the class or practice on their own before retaking the class. This rule clarifies that the instructor has authority to counsel such a driver to not participate further in a class and that such an action does not preclude the rider from retaking the class at another time.

The classroom requirements for both the basic rider course and the basic course for experienced riders are consolidated in s. Trans 129.09 (4). The proposed rule allows for the use of the online e-course and describes the content of the classroom portion. The required Wisconsin-specific curriculum currently includes discussion of alcohol and drug impairment and the importance of driving unimpaired; Wisconsin law on children as passengers; traffic actuated signals and licensing requirements; farm machinery and animals in the roadway; emergency vehicle interaction; and the state organ donor program.

Proposed changes to s. Trans 129.10 largely reflect current program practices with regard to instructor requirements. The department-approved course has been the Motorcycle Safety Foundation RiderCoach Preparation Course. Section Trans 129.10 (2) (b) codifies a requirement that persons who undergo out-of-state rider coach training submit proof of their completion of the significant pre-course work that is required as a condition of taking the course. The training provides the background information necessary to understand the reasoning and methodology used in the mandated curriculum. Coach trainees who lack that training can complete it as part of the out-of-state rider coach orientation class.

The rule amends s. Trans 129.10 (2) (c) to establish a minimum instruction requirement of 2 courses per year with the new 2-year licensing scheme. Current law requires instructors teach one course per year. The department believes that requiring 2 courses be taught per year will help instructors better retain their skills. Moreover, the department would prefer to direct its limited instructor trainer resources to persons who provide more instruction than a single class per year.

Changes to s. Trans 129.10 (2) (d) codifies the Motorcycle Safety Foundation’s recommendation that rider coaches complete at least 6 hours of professional development activities during each year of an authorization period. Section Trans 129.10 (2) (e) to (g) clarifies that rider coaches need to meet both state licensing requirements and curriculum provider accreditation to serve as a rider coach.

This rulemaking amends s. Trans 129.10 (3) (a) to provide for suspension of a motorcycle instructor license if the rider accumulates 6 or more demerit points for offenses committed during a one-year period. This reduces the number of demerit points that will trigger licensing action from 7 to 6 points. DMV does not assess demerit points for out-of-state offenses, so the serious traffic violations that result in assessment of 6 points if committed in this state are listed as bases for suspension of motorcycle instructor licenses in proposed s. Trans 129.10 (3) (am).

Proposed s. Trans 129.10 (5) (a) provides that the department may suspend a motorcycle instructor’s license if the instructor fails to meet the training and background requirements of s. Trans 129.10 (2), (3), and (4).

Proposed s. Trans 129.10 (5) (b) to (d) codifies requirements that rider coaches who lack a license, whose authorization to teach classes is withdrawn by the Motorcycle Safety Foundation, who fail to comply with training requirements, or who fails a department evaluation may be disqualified from teaching motorcycle instruction courses until they comply with those requirements.