STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
PROPOSED ORDER ADOPTING PERMANENT RULE
(See PDF for image)
The Wisconsin Department of Transportation proposes an order to:
Create ss. Trans 3.02 (1), (3m), 4.02 (1), (1h), (1p), 4.02 (2m), (3g), (3r), (4g), (4r), (10g), (10r), (12), 4.04 (3), (5) (aa), 4.07 (1m), 6.02 (1) (a), (b), (1g), (1r), (2m), (5g), (5r), (6) (a), (b), (c), (6m), (7m), (8m), (10m), (14m), (16), 6.03 (1) (b) 19., (3), 6.06 (1) (g), (h), (i), (3), 6.10 (4m), 8.02 (1m), (13), 8.03 (2) (f) and (g); amend ss. Trans 3.01 (2), 3.02 (2) (intro), (3), (4), (5), (7), (9), 3.03 (1) (b), (3) (c), (f), 3.04 (3) (e), (4) (c), 4.02 (2) (intro), (a), (b), (4), (5m), (7), (8m), (11), 4.03, 4.04 (1), (2), (b), 1., 2., 3., 4., (intro.), a., (4) (b), 6., 7., (c), (5) (f), (g), (o), (q), (r), (s), (t), (u), (w), (x), (z), 4.05 (1), 4.06 (1), (2), (4), 4.07 (1), (2), (3), (4), (5), (6), 4.08 (title), (1), (2) (intro.), (a), (3), (4) (intro.) (b), (g), 4.09 (intro.), (1), (2) (intro.), (4) (b), (c), (d), (f) 1., 6.01, 6.02 (1), (2), (3), (4), (4m), (5), (6), (7), (8), (10), (12), (14), (15), 6.03 (1) (intro.), (a), (b) (intro.), 4., 6., 7., 17., 18., (c) 1., 2., 3., 4., (2), 6.04 (1) (intro.), (a), (b), (d), (e), 6.05 (title), 6.06 (1) (intro.), (a), (c), (d), (e), (f), 6.06 (2), 6.07 (1), (2), (3), (5), (7) (a), (b), 6.10 (3), (4) (intro.), (5), 8.01, 8.02 (2), (2r), (4), (5), (6), (8), (12), 8.03 (title), (1) (a), (b), (2) (intro.), (a), (3), 8.04; repeal ss. Trans 4.04 (4) (b) 4. (note), 5., 4.05 (3), (4), (5), 4.07 (1) (note), 4.08 (5), (6), 6.03 (1) (b) 16., 6.07 (6), 6.10 (6), 6.12,8.02 (9), (11m); repeal and recreate ss. Trans 4.02 (3), 4.04 (4) (a), 4.09 (3), 6.06, 6.10 (1), (2), 6.11, 8.02 (1), (10); renumber and amend s. Trans 4.02 (1r); and to renumber ss. 3.02 (1), 4.02 (1). (See PDF for image)
The Statement of Scope for this Permanent Rule, SS 078-15, was approved by the Governor on August 17, 2015, published in Register No. 716A4 on August 24, 2015, and approved by Secretary of the State of Wisconsin Department of Transportation Mark Gottlieb, P.E., as required by s. 227.135 (2), Stats, on September 21, 2015. The State of Wisconsin Department of Transportation Proposes an Order to Amend Permanent Rule Wis. Admin. Code chs. Trans 3, 4, 6, 8 relating to Administration of Grant Programs to Administer Federal and State Funds for Local Public Transit Services. The analysis below was prepared by the Wisconsin Department of Transportation (Department or WisDOT).
ANALYSIS
Statutes Interpreted: Section 85.20, Stats., 49 USC §§ 5307 and 5311 Explanation of Agency Authority: Section 85.16 (1), Stats., authorizes the Department’s secretary to “make reasonable and uniform orders and rules deemed necessary to the discharge of powers, duties, and functions vested in the department.” Additionally, s. 85.20 (3), Stats., states that “The department shall administer the urban mass transit operating assistance program and shall have all the powers necessary and convenient to implement this section…” Moreover, under s. 227.10 (1), Stats., “Each agency shall promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute.” Related Statute or Rule: Trans 3, 4, 6 and 8 derive from s. 85.20, Stats., which establishes a statewide urban mass transit operating assistance program and authorizes the Department of Transportation to administer it. Several other statutes (ss. 85.205, 85.21, 110.063, 194.41, 77.54 (5) (b), 78.01 (2) (d), 78.01 (2m) (e), and 78.75 (1m), Stats.) and administrative rules (Chapters Trans 1, 2, 330, and 176.06) bear on the administrative rules subject to this proposed order. However, the changes to Trans 3, 4, 6, and 8 do not affect how these other statutes and rules regulate public transit service in Wisconsin. Plain Language Analysis: This rulemaking updates Chapters Trans 3, 4, 6 and 8, Wis. Adm. Code, which address the Department’s administration of state and federal public transit programs. It removes or replaces obsolete language, corrects errors, and provides greater specificity in areas of the existing rule text that are unclear. It does not substantially change the way that the Department manages the distribution of federal and state funds for local public transit services, or the way that it oversees subrecipients of these funds. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: Trans 3, 4, 6, and 8 establish the Department’s blueprint for implementing and managing federal transit operating and capital funding programs established under 49 USC §§ 5307 and 5311, and the state transit operating funding program established under s. 85.20, Stats. The Section 5307 program provides funding to public transit systems in urbanized areas (incorporated areas with a population of at least 50,000) for public transportation capital, planning, job access and reverse commute projects, and in some circumstances operating expenses. Section 5307 funds for urbanized areas with populations of at least 200,000 flow directly from the Federal Transit Administration (FTA) to authorized local public agencies. Funds for smaller urbanized areas flow through the Governor or Governor’s designee (in Wisconsin, the Department of Transportation).
The Section 5311 program parallels the Section 5307 program, but provides funding for public transit systems serving rural and small urban areas (those with population under 50,000). Unlike the Section 5307 program, all federal funds flow through the Governor or Governor’s designee, and may be used to pay for transit service operating expenses.
Section 85.20, Stats., establishes a framework for allocating state and federal transit funds to the operations of mass transit systems serving “urban areas.” (Per statute, an urban area is defined as “…any area that includes a city or village having a population of 2,500 or more that is appropriate, in the judgment of the department, for an urban mass transit system or an area that includes 2 American Indian reservations and that is served by a mass transit system operated by a transit commission.”) It directs the Department to combine and equitably distribute state and federal funds among eligible public transit systems within each funding tier defined in s. 85.21 (4m) (a), Stats. It also broadly establishes the Department’s administrative authority in this regard, including the authority to:
receive applications for financial aid and prescribe the form, nature and extent of information contained therein;
execute contracts with eligible applicants to ensure continued provision of transit service (subject to the applicant satisfying certain conditions);
audit the operating revenues and expenses of all urban mass transit systems participating in the program;
conduct management performance audits of all participating urban mass transit systems at least once every 5 years; and
apply for and receive federal grants for the Department or as requested on behalf of eligible recipients.Section 85.20, Stats., limits each system’s state funding to the system’s operating deficit less the federal funds it receives. Finally, it instructs the Department to impose certain requirements on the recipients of state and federal transit funding. The statute does not address the use of federal funds for transit system capital investments, nor does it establish a state-funded capital program. The administrative rules flesh out the requirements of s. 85.20, Stats. Chapter Trans 3 establishes procedures by which public transit systems may count passenger trips. (The Department requires this information as a condition of disbursing state and federal funds, and transit agencies need it to satisfy the Department’s transit development planning and performance goal requirements.) Chapter Trans 4 defines eligible costs under the federal 5307 and 5311 public transit aid programs, and outlines service procurement requirements. It also specifies a due date for public transit systems to submit state aid applications to WisDOT and the deadline for new systems to notify the Department of their intention to apply for state aid. Finally, the rule specifies the performance metrics and cost efficiency standards required under s. 85.20, Stats. Chapter Trans 6 addresses the Department’s administration of the 5311 program specifically, including the rural transit assistance program. It restates the legal limit on use of federal funds for operating costs (generally, 50% of operating deficit), and caps combined federal and state allocations for operating assistance at 70% of projected operating expenses. Similarly, it restates federal law provisions allowing use of funds for administrative and technical support purposes. It also establishes a deadline for public transit systems to submit federal aid applications to WisDOT, dictates that unused operating funds be used for capital projects, and specifies capital project funding priorities. Chapter Trans 8 governs the allocation of the governor’s 5307 program apportionment. It specifies that funds be allocated to operating costs first – up to 50% of operating deficit – and caps combined federal and state allocations for operating assistance at 70% of projected operating expenses. It also specifies capital project funding priorities. In summary, s. 85.20, Stats. and Chapters Trans 3, 4, 6, and 8 are linked to federal code that establishes the 5307 and 5311 programs, but they do not significantly reference the specific contents of that code. To the extent they do, however, minor inconsistencies have developed over the years as federal transit laws have evolved. The rule revisions contained in this proposed order will, among other things, eliminate these inconsistencies. Comparison with Rules in Adjacent States:
Illinois. Illinois’ public transit program is established under Illinois Compiled Statutes, specifically Section 2705 of Chapter 20 (20 ILCS 2705), 30 ILCS 740, 70 ILCS 3610 and 70 ILCS 3615. State administrative provisions are set forth in Illinois Administrative Code (ILAC), 92 IAC Parts 651 and 653. Broadly, these statutes and rules authorize the Illinois Department of Transportation (IDOT) to administer statewide transit operating and capital aid programs, establish aid recipient eligibility, and govern IDOT’s program administration. Eligible recipients include local government units, transit districts, and transit authorities.
The statutes and rules generally are consistent with those governing WisDOT’s administration of Wisconsin’s statewide public transit aid programs. However, ILAC rules that govern IDOT’s administration of its state-funded transit capital programs have no corollary in Wisconsin administrative rule, because no such program exists in Wisconsin.
Iowa. Administration of public transit services is set forth at Iowa Code Chapters 28M (Regional Transit Districts) and 324A (Transportation Programs), and Iowa Administrative Code (IAC) 761 Chapters 910, 911, 920, 921, 923, and 924. The statutes establish statewide public transit programs and identify the Iowa Department of Transportation (DOT) as their administrator, enable the establishment of regional transit districts, and authorize these districts to raise funds to support transit services. The administrative code requires Iowa DOT to assure that transit systems comply with a statewide transportation coordination mandate, describes the statewide program through which the DOT may issue capital and unrestricted (operating, capital and “special project”) funds to transit systems, and establishes the algorithm by which transit systems receive state funding.
Iowa’s rules relating to public transit administration generally correspond with Wisconsin’s. However, Iowa’s rules address transit districts operations and the administration of state capital project aids, neither of which is relevant in Wisconsin.
Michigan. Section 247.660 of Michigan Compiled Laws (MCL) creates a comprehensive transportation fund to finance local transit service projects across the state, and requires the Michigan Department of Transportation (MDOT) to establish rules for administering it. Administrative rules R 247.4101 through 247.4307, and R 474.101 through 474.106 govern MDOT’s administration of the fund and oversight of transit services across the state. Michigan’s transit aid program and administrative structure under MCL and associated rules are consistent with Wisconsin’s, though Wisconsin has no state capital aid program and generally caps state operating aid at lower levels. Eligible public transit aid recipients include counties, cities, villages, and regional transit authorities (RTAs), the latter of which may not legally be established in Wisconsin.
Minnesota. Rules governing public transit administration are set forth in Minnesota Administrative Rules Chapter 8835, and derive from Minnesota Statutes Chapter 174 (primarily s. 174.21 through 174.247). Chapter 8835 identifies the Minnesota Department of Transportation (MNDOT) Office of Transit as the administrator of statewide transit programs, directs the office to allocate transit aid funds to public transit systems, and establishes procedures and standards for review and approval of annual applications for financial assistance under the public transit program established.
Minnesota’s rules largely mirror Wisconsin’s, though they reflect differences in the design of the respective state transit aid programs. For instance, Minnesota law provides state transit aids for operating assistance, capital assistance, and planning and design projects, and permits counties in the Minneapolis-St. Paul urbanized area to collect local sales taxes that may fund transit capital projects.
Summary of the Factual Data and Analytical Methodologies that the Agency Used in Support of the Proposed Rule and How Any Related Findings Support the Regulatory Approach Chosen for the Rule: As noted above, the changes to Trans 3, 4, 6 and 8 amount to modest revisions intended to accurately reflect current federal law and Department procedures. Consequently, most of the factual basis informing the revisions amounts to close readings of current federal laws and guidance, reviews of state law and oversight documentation, and reviews of best practices among state agencies administering public transit programs. Relevant federal law includes 49 CFR Chapter 53 as amended by the Fixing America’s Surface Transportation Act (FAST Act), sections 5302, 5307, 5311, and 2 CFR Part 200. Several WisDOT staff involved in managing statewide public transit programs participated in reviewing the existing versions of Trans 3, 4, 6 and 8, and documenting deficiencies in them based on current state law (s. 85.20, Stats.), Department practices, and federal laws and policies. Department auditors weighed in on rule sections related to allowable expenses. Beyond the in-house analysis, WisDOT transit staff consulted with local transit managers representing the Wisconsin Public Transit Association regarding the proposed rule changes. This consultation was intended to ensure that the revisions reflect a consistent understanding of federal and state laws and guidelines, and would not unnecessarily affect or complicate public transit system operations.
Analysis Regarding Rule’s Effect on Small Businesses:
Effect on small business: WisDOT anticipates no substantive impact on small businesses. Taxi services providing shared-ride taxi public transit service under contract with public agencies could be indirectly affected by these rule revisions. However, the revisions should have no bearing on their public transit service business; they simply update WisDOT rules to reflect the current administrative framework under which these businesses currently operate.
Specific revisions with bearing but no fiscal impact on private transit service providers are:
rewording in Trans 4.04 and Trans 6.03 to clarify that requests for proposals are used to procure public transit service from private providers, and
rewording in Trans 4.05 to clarify that private businesses providing public transit service are subject to Department contract compliance audits.
adding language to Trans 4 and Trans 6 to clarify that, consistent with current federal law, federal public transit funds may be used for job access and reverse commute projects. These projects can entail procurement of services or goods provided by small businesses.Fiscal effect: None.
Anticipated costs incurred by private sector: None.
Proposed rule’s effect on small businesses:
