STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
PROPOSED ORDER AMENDING EMERGENCY RULE
The Wisconsin Department of Transportation proposes an order to:
Finding/Nature of Emergency
In December of 2019, a novel strain of the coronavirus was detected, now named COVID-19, and it has spread throughout the world, including every state in the United States. On March 12, 2020, Governor Tony Evers issued Executive Order #72 and declared a public health emergency, directing all agencies support the efforts to respond to and contain COVID-19 in Wisconsin.
Since then, the virus has continued to spread across the nation resulting in additional emergency declarations nationwide. Wisconsin is facing a new and deadly disaster in this public health emergency which could result in a lack of medical care for Wisconsinites throughout the state. Wisconsin's hospitals are operating at or very near full capacity, and health care providers are struggling to keep up with the demand for care. In response, Executive Order #95 was issued on November 20, 2020, also directing all agencies to support the efforts and to respond to and contain the virus.
When weather-related or health emergencies arise, the Department of Transportation must facilitate the movement of essential goods and services while ensuring the safety of the public and highway infrastructure throughout the state.
The Statement of Scope for this Emergency Rule, SS 033-21 was approved by the Governor on February 19, 2021, published in Register No. 783A4 on March 22, 2021, and approved by Secretary of the State of Wisconsin Department of Transportation (department) Craig Thompson, as required by s. 227.135(2), Stats, on December 30, 2020. The analysis below was prepared by the department. ANALYSIS
Explanation of Agency Authority:
Section 348.25(3), Stats., grants the department broad OSOW rulemaking authority: “The department may impose such reasonable conditions prerequisite to the granting of any permit authorized by s. 348.26 or 348.27 and adopt such reasonable rules for the operation of a permittee thereunder as it deems necessary for the safety of travel and protection of the highways.” Sections 85.16(1) and 227.11(2)(a), Stats., grant the secretary authority to make rules necessary to the discharge of the powers, duties and functions vested in the department, and to effectuate the purposes of the statutes. Related Statute or Rule:
Chapter 348, Stats. regulates the size and weight of vehicles and Chapters Trans 230, 250 through 276, Wis. Admin. Code all relate to support oversize/overweight permitting. Plain Language Analysis:
Chapter Trans 230, Wis. Admin. Code provides general permitting guidance to vehicle users and law enforcement authorities for safe and lawful operations in conformance with Wisconsin vehicle size, weight and combination laws. However, the current administrative rule does not allow the department flexibility to waive the divisible load requirement and respond quickly to emergency situations nor to coordinate Wisconsin emergency permitting with neighboring state or federal authorities. The department proposes to amend the general permit conditions in Ch. Trans 230 in a manner that would allow the department to issue permits for loads exceeding statutory size or weight restrictions, or both, for vehicles responding to declared emergency situations. This proposed amendment would not change the general requirements of section Trans 230.01(3)(e)10. that permit holders must comply with all state and local ordinances rules and regulations, including vehicle weight limits, unless otherwise provided in the permit. Typically, in non-emergency situations, permits are issued for state highways and permit holders apply to the jurisdiction with maintaining authority over local or county highways if they seek permits to traverse those highways. In extreme situations, such as the 2019 southern Wisconsin flood emergency, the deparment consults with local jurisdictions as needed if authority for transporation will neccesarily impact both state and local routes. Using the department as a single permitting authority assists local jurisdictions already reeling with the demands of responding to the natural disaster from dealing with a variety of requests for emergency permits to provide emergency transportation to their jurisdiction. The department undertakes this role only in emergencies and after extensive consultation with local governments for their direction; the state does not have sufficient information about local streets and highways, their composition, structures, traffic, and other data, nor the staff, necessary to administer local government permitting on a regular basis. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
During periods of national emergency, federal law allows states to issue special permits allowing transportation of emergency relief supplies in overweight vehicles notwithstanding divisibility of the loads. 23 U.S.C. s. 127(i)(1). Permits making use of this provision of federal law must expire not later than 120 days after the date of the national emergency declaration. 23 U.S.C. s. 127(i)(2). Transportation of debris is not permitted under the federal law.
Federal law also provides for increased weight limits for “emergency vehicles” that transport personnel and equipment and are supporting fire supression or mitigation of other hazardous situations. 23 U.S.C. s. 127(r).
Federal agencies have waived certain federal requirements for past emergencies, such as responding to Hurricane Katrina. This proposed rulemaking would allow the department to align more quickly with any waivers of federal laws, as well as coordinate with our neighboring states to help provide seamless border transitions for permit users.
Comparison with Rules in Adjacent States:
Illinois.
Illinois Code Section 625 ILCS 5/15-101(b) allows oversize/overweight vehicles to be operated by special permit in excess of generally applicable Illinois weight limits. No emergency declaration is required. State officials advise they issue emergency divisible load special permits to allow overweight transportation in response to emergencies. The permits specify the routes of travel permitted and directs permit holders around size or weight-restricted structures and roadways. Public utility vehicles are simply exempt from weight limits when transporting equipment required for emergency repair of public utility facilities, properties or water wells. 625 ILCS 5/15-111(a)(4).
Iowa.
Iowa generally prohibits transportation of divisible loads in excess of statutory weight limits. IA Stat. s. 321E.2.1. Iowa allows divisible loads to be transported above those weight limits under permits related to disaster relief activities. IA Stat. s. 321E.29. Permits are issued by the authority with jurisdiction over the highway(s) over which operation is allowed.
Iowa officials advise that state practice is to issue permits only if authorized by a Governor’s emergency declaration that suspends the regulatory provisions of lowa Code §§ 321.463(6) (a) and (b) and 321E.29 and Iowa Admin. Code chapter 7 61-511, to the extent those provisions restrict the movement of loads related to disaster relief. The Governor has authority under Iowa Code 29C.6 to issue a proclamation of disaster emergency which lasts 30 days, unless sooner terminated or extended in writing by the governor.
Michigan.
Michigan allows oversize/overweight vehicles to be operated by permit in order to mitigate issues related to public emergencies; however, the law simply requires “a written application and good cause being shown” and is not restricted to emergencies. Michigan Compiled Law Section 257.725(1) states: “Upon receipt of a written application and good cause being shown, a jurisdictional authority may issue a written special permit authorizing an applicant to operate upon or remove from a highway maintained by that jurisdictional authority a vehicle or combination of vehicles that are any of the following: a. Of a size, weight, or load exceeding the maximum specified in this chapter; b. Otherwise not in conformity with this chapter.” An expiration date must be included in the permit. MI Stat. s. 257.725(4). Minnesota.
Minnesota oversize/overweight permitting is regulated by statute; there is no administrative rule specific to oversize/overweight permits to dictate process/decisions. Minnesota allows oversize/overweight vehicles to be operated by permit during public emergencies. The Minnesota commissioner of transportation has broad oversize/overweight permit issuing authority under Minnesota Statutes section 169.86, including authority to allow divisible loads to be transported in excess of statutory weight limits on highways under state jurisdiction. Local authorities must permit operations on highways under their jurisdiction. Authority is not limited to emergencies, specific materials or commodities and does not limit the commissioner’s authority with respect to permitting operation of divisible loads above statutory weight limits as part of an emergency response. The law simply requires “upon application in writing and good cause being shown therefore.” The focus is to protect the public from an imminent threat to health and safety.
Summary of the Factual Data and Analytical Methodologies:
The proposed modifications are not based on data analysis. The department’s anecdotal experience in responding to emergency situations has revealed a need for flexibility in responding to the pressing needs associated with natural disasters and other emergencies.
Analysis Regarding Rule’s Effect on Small Businesses:
Implementation of the proposed changes is anticipated to have an overall minimal to no impact to small businesses and industries in Wisconsin. The changes will allow the department to be able to quickly facilitate the movement of essential goods and services and respond to the ongoing needs of industries during emergency situations. Businesses may individually decide whether they need to apply for the emergency permits to meet their business needs. The proposed rule merely provides another option for business and industry to move essential goods and services. Additionally, this proposed rulemaking would allow the department to align more quickly with any waivers of federal laws, as well as coordinate with our neighboring states to help provide seamless border transitions for all permit users, including small businesses.
The agency contact person listed below is also the small business regulatory coordinator for this proposed rule. This proposed rule, fiscal estimate, and other related documents may be viewed at https://docs.legis.wisconsin.gov/code. Agency Contact Person:
