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 appropriately adopt and enforce state 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 drivers needs to be better defined and to not include all commercial vehicle drivers only those operating a school bus. The term charter needs to be removed to better clarify the intent of the exemptions given are only applicable to school related trips, not any trip in which a school bus is used. 49 CFR 390.23 – Relief from 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 carrier to declare the emergency. 49 CFR 391 – Driver Qualifications. The State’s exemption in Trans 327.09 of intrastate drivers holding a Wisconsin CDL 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 non-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 passengers including the driver, and the vehicles requires an Hazardous Material placard. 49 CFR 395.1(e), 395.3, and 395.8 – Records of Duty Status and HOS. 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.) The wording in 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. Adoption of 49 CFR 395.8 which includes the Electronic Logging Device (ELD) requirements put forth by the Commercial Motor Vehicle Safety Enhancement Act of 2012 49 U.S. Code § 31137. Currently Trans. 327 does adopt 49 CFR 395.3 except for the maximum on duty and driving hours identified in 49 CFR 395.3. It is the objective of the proposed rule to enforce 49 CFR 395.3(a)(3)(ii). Additional proposed changes that did not originate from FMCSA review:
- 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 service 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), consistent with definition of commercial motor vehicle at 49 CFR 390.5. - Trans 327.09 (2)(a) needs to be clarified to include vehicles designed to carry 16-passengers, consistent with state statute 343.04(2)(d).
4. Detailed explanation of statutory authority for the rule (including the statutory citation and language):
Wisconsin Statutes, ss. 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 343.06(2) (“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. 110.07 Traffic officers; powers and duties.
(1)(a) The secretary shall employ not more than 399 traffic officers. The state traffic patrol consists of the traffic officers, the person designated to head them whose position shall be in the classified service and, if certified under s. 165.85 (4) (a) 1. as qualified to be a law enforcement officer, the division administrator who is counted under s. 230.08 (2) (e) 12. and whose duties include supervising the state traffic patrol. The division administrator may not be counted under this paragraph. Members of the state traffic patrol shall:
