STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
PROPOSED ORDER AMENDING PERMANENT RULE CR 22-051 (See PDF for image)
The Wisconsin Department of Transportation proposes an order to:
amend ss. Trans 327 (title), 327.03 (2) (a) 1. and (7) and (Note), 327.07 (1) and (2), 327.09 (1), (4) (intro.), and (b), and 327.13 (Note);
create s. Trans 327.09 (1) (Note), 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, and affecting small businesses. (See PDF for image)
The Statement of Scope for this permanent rule, SS 009-21, was approved by the Governor on October 23, 2020, published in Register No. 781B on January 25, 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 23, 2020. The state of Wisconsin Department of Transportation (“Department”) proposes an order to amend permanent rule ch. Trans 327, relating to Motor Carrier Safety Assistance Program (MCSAP) review for the state of Wisconsin by the Federal Motor Carrier Safety Administration (FMCSA). The analysis below was prepared by the Department. ANALYSIS
Explanation of Agency Authority: Current law authorizes the Department to promulgate such rules as the Secretary considers necessary relating to operator’s licenses and requires that any such rules be at least as stringent as standards set by FMCSA and the regulations adopted under that Act. Also under current law, the state of Wisconsin specifically assents to the provisions of FMSCA and the regulations adopted under that Act, and declares its purpose and intent to make provisions to implement and enforce that law and those regulations so as to ensure receipt by this state of any federal highway aids that have been or may be allotted to the state under the National Highway Performance Program, Surface Transportation Block Grant Program, and National Highway Freight Program under 23 U.S.C. § 104 (b) (1), (2), (5). Current law requires the Department to institute a classified driver license system meeting all federal standards under 49 U.S.C. §§ 30304 (e) and 31301 to 31317 and 49 CFR 383 and 384, and to issue driver licenses in conformity with the classified driver license system. Finally, current law prohibits the Department from issuing any commercial driver license (CDL), including a renewal or reinstated license, to any person, or reinstate a person’s authorization to operate a commercial motor vehicle (CMV), during any period of disqualification under state or federal law, or under the law of another jurisdiction disqualifying a person from operating a CMV under circumstances similar to those specified in state or federal law, or under a determination by the FMCSA that the person is no longer qualified to operate a CMV under federal law, or to any person whose operating privilege is revoked, suspended, or canceled. Current law requires the Department to promulgate and enforce rules as the Department deems necessary in the interests of the safety of persons and property being transported to cover the transportation, design, construction, equipment, inspection and operation of motor buses, and human service vehicles school buses and their drivers. Current law requires the Department to prescribe rules and regulations as to safety of operations and the hours of labor of drivers of common motor carriers of property or of passengers or contract motor carriers or private motor carriers, although such regulations do not apply 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 CMV described in s. 340.01 (8) (c) or (d), Stats., and the vehicle combination is operated solely in intrastate commerce. Plain Language Analysis: The proposed rule revisions would bring the state closer into compliance with federal regulations pertaining to the intrastate transportation of passenger and property identified as part of a FMCSA audit conducted in 2009 of Wisconsin’s Motor Carrier Enforcement Program. Implementing these rule revisions would help ensure that Wisconsin is receiving the full amount of federal grant funds allocated to the state and would serve to simplify and clarify ambiguous language not readily understood by enforcement and industry. The proposed changes would also guarantee that sufficient rules are in place to ensure the safe transportation of passengers and property within the borders of the state.
This rulemaking makes the following changes:
Section 1. Amends the title to clarify that this chapter applies only to intrastate commercial operation.
Section 2. Repeals obsolete definitions, “Driver’s record of duty status” and “Emergency.”
Section 3. Deletes a requirement that a driver with diabetes mellitus controlled by insulin must provide statements from 2 physicians that the diabetes is not likely to cause loss of ability to control or operate a vehicle. Instead, this state adopts the federal physical qualifications, which allows a driver whose diabetes mellitus is controlled by insulin to meet the physical qualifications by obtaining a medical evaluation from only one treating clinician, who must be currently managing and prescribing insulin to the driver, and a statement from the medical examiner who completes the federal medical examination that the driver is free of complications from diabetes mellitus that might impair the driver’s ability to safely to operate a CMV.
Section 4. Limits authority of law enforcement to declare a driver out-of-service for violating hours of service to the state hours of service limits, not the more restrictive federal hours of service limits. Updates an address.
Section 5. Makes various changes to hours of service limitations. Increases the number of continuous driving hours permissible for a property-carrying CMV driver from 11 to 12 hours. Adopts federally approved enlarged hours of service wherever possible. Adopts 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 but delays the adoption for one year. All applicable exemptions from the ELD mandate for interstate transportation will also be applied by this rulemaking. Section 6. Repeals existing state hours of service limitations since the rule adopts federal hours of service limitations. See the description above in Section 5.
Section 7. This section provides enforcement authority for the Division of State Patrol to issue citations of $50-$100 per violation for violations of certain federal motor carrier regulations, for which only warnings are now issued, including falsified records and incorrect vehicle markings and for controlled substance and alcohol testing violations. It authorizes the Division of State Patrol to stop and inspect a vehicle if the officer has a reasonable basis to believe a violation of 49 CFR 390 (an expansive federal regulation covering ‘Motor Carrier Safety Regulations; General’) has occurred. This authority to enforce 49 CFR 390 does not apply 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 and is operated exclusively in intrastate commerce. This section also authorizes the Division of State Patrol to enforce 49 CFR 382 (‘Controlled Substances and Alcohol Use and Testing’) under sections 194.38 and 194.43 of the statutes, which subjects violators to forfeitures. Section 8. Makes drivers of school buses used in charter activities and in extracurricular activities that are not school-related subject to the hours of service and driver qualifications.
Section 9. Contains a note summarizing the exemptions authorized by 49 CFR 350.305(b)(2) for school bus drivers engaged in intrastate operations. Section 10. Updates a cross reference to reflect changes made by this rule to retain existing hours of service limitation exemptions for authorized emergency vehicles: tow trucks and drivers of CMVs that weigh 26,000 pounds or less, transport fewer than 16 passengers, or transport hazardous materials that do not require placarding. See the descriptions above in Sections 6 and 7.
Section 11. Expands an exemption from hours of service to any vehicle that does not meet the state definition of CMV. Deletes exemptions from hours of service limitations for drivers located within 150 miles of home office or work site. Deletes the authority of motor carriers to declare emergencies that exempt themselves from driver qualifications and hours of service limitations. These drivers are subject to federal hours of service requirements. See the description above in Section 6.
Section 12. Updates a web address.
Section 13. Provides the effective date of changes accomplished by this rulemaking.
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
These proposed rule changes will mirror existing federal statutes and regulations and would make Wisconsin consistent with other adjacent states that are presently compliant with certain federal regulations. However, because some states are presently not compliant with every federal regulation, Wisconsin could be inconsistent with other states until these states become compliant with federal law. FMCSA identified three nonconforming areas in its 2009 audit:
1. The state’s exemption of intrastate drivers from driver qualifications and hours of service regulations during emergencies, in s. Trans 327.09 (6) is not compatible with 49 CFR 390.23. A qualifying emergency may be declared only by certain specified federal, state, or local officials. Currently, Wisconsin regulations allow the motor carrier to declare the emergency. 2. FMCSA noted that the permissible federal exemption is limited to driver physical qualifications, a smaller subset of the requirements of 49 CFR 391, and that Wisconsin’s exemption is overbroad. The department intends to address this in another rulemaking. 3. 49 CFR 395.8 requires Electronic Logging Devices in intrastate commerce put forth by the Commercial Motor Vehicle Safety Enhancement Act of 2012 49 U.S. Code § 31137. Comparison with Rules in Adjacent States:
Illinois
1. Illinois does not allow a motor carrier to self-declare an emergency.
2. Illinois does have a grandfather provision for part 49 CFR 391. Paragraphs (b) (3) (insulin dependent diabetic) and (b) (10) (minimum visual acuity) of 49 CFR 391.41, shall not apply to the driver of a CMV with a gross vehicle weight rating (GVWR) or gross combination weight (GCW) of over 12,000 lbs., used in the intrastate transportation of property who immediately prior to July 29, 1986, was eligible and licensed to operate a motor vehicle subject to the Illinois Motor Carrier Safety Regulations (IMCSR) and was engaged in operating such vehicles, and who was disqualified on July 29, 1986, by the adoption of 49 CFR 391, by reason of the application of paragraphs (b) (3) and (b) (10) of 49 CFR 391.41, with respect to a physical condition existing at that time unless such driver has a record of accidents which would indicate a lack of ability to operate a motor vehicle in a safe manner. (Section 18b-105 of the law). Paragraphs (b) (3) (insulin dependent diabetic) and (b) (10) (minimum visual acuity) of 49 CFR 391.41, shall not apply to the driver of a CMV that either has a GVWR or gross combination weight rating (GCWR) of between 10,000 and 12,001 pounds; or that is designed to transport more than 15 passengers, including the driver; or that has a GVWR or GCWR of less than 12,001 pounds and transports hazardous materials in a quantity requiring placarding under the Illinois Hazardous Materials Transportation Act [430 ILCS 30]. The vehicle must be used in intrastate transportation. The driver must have been eligible and licensed to operate a motor vehicle subject to the IMCSR and engaged in operating that vehicle immediately prior to January 17, 1992. The driver must have been disqualified on January 17, 1992, by the adoption of Public Act 87-829 that made the IMCSR applicable to vehicles described in this subsection (c) (4). The reason for disqualification must have been the application of paragraphs (b) (3) and (b) (10) of 49 CFR 391.41, with respect to a physical condition existing at that time. This exception does not apply to any driver who has a record of accidents that would indicate a lack of ability to operate a motor vehicle in a safe manner. 3. Illinois requires an ELD in intrastate commerce.
Iowa
1. Iowa does not allow a motor carrier to self-declare an emergency.
2. Iowa does have a grandfather provision for part 49 CFR 391. Iowa law: 321.449 Motor Carrier Safety Rules
