Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
Chapter 2. Literature ReviewIntroductionThis chapter contains a review of literature related to the relief of OS and OW limitations onCMVs in emergencies and disasters. The research team performed a literature review using bothmanual and computerized methods for the literature search. Researchers utilized theTransportation Research Information Service, the National Transportation Library Repositoryand Open Science Access Portal, the FEMA and FMCSA websites, and other resources like theTexas A&M University Library System discovery service (EBSCOhost) and Google Scholar.The team did not rely solely on document searches since they lag several months behind currentefforts due to their record entry requirements, and they may not include some documentsprepared by transportation agencies. In addition to the literature review, and to determine howOS/OW special permitting worked in practice, the project team studied recent emergencydeclarations posted to the Commercial Vehicle Safety Alliance (CVSA) Emergency DeclarationsPortal between March 2020 and October 2022.The American Association of State Highway and Transportation Officials (AASHTO) hasdocumented COVID-19-related overweight limit changes in 44 states and the District ofColumbia (AASHTO, 2019). Researchers also reviewed documentation and regulations fromvarious governing authorities regulating OS/OW permitting. Currently, the authorities regulatingOS/OW permitting in each state include: ⢠State DOTs in 41 states. ⢠Departments of motor vehicles (DMVs) in Connecticut, Maine, Texas, Vermont, and Virginia. ⢠DPSs in Georgia and South Dakota. ⢠HPs in North Dakota and Wyoming.The research team also investigated literature about regulatory relief at the federal, state, andlocal levels. This also included AASHTOâs OS/OW permit harmonization guide (Athey CreekConsultants, 2022), best practices report, and maximum dimensions and weights of motorvehicles guide (AASHTO, 2019).This literature review examined FHWAâs information on OS/OW load permits and updatedguidance on special permits, in addition to the new permit harmonization updates, agreements, ormeeting notes from the following regional state highway transportation official organizations: ⢠Mid-America Association of State Transportation Officials (MAASTO). ⢠Western Association of State Highway and Transportation Officials (WASHTO). ⢠Northeast Association of State Transportation Officials (NASTO). ⢠Southeastern Association of State Highway and Transportation Officials (SASHTO).The Eastern Transportation Coalition project is under consideration and would harmonize theemergency divisible loads (EDLs) for NASTO and SASHTO states. 7
While many organizations and studies make recommendations about OS/OW permitting, therelief of OS/OW limitations for CMVs in emergencies depends primarily on state and federallaws and regulations. At the federal level, laws and regulations govern when states may issueOS/OW special permits in emergency situations on the interstate highway system. However,states still issue the permits. At the state level, laws and regulations govern when the state mayissue special permits for state roads and designate the agency or department of the stategovernment responsible for issuing special permits.Additionally, both state and federal laws and regulations govern what constitutes an emergencysituation and provide the legal authority for the president or governor to declare an emergencyand trigger the consideration of special permitting procedures. Thus, the literature review focusesheavily on laws and regulations governing disaster declarations, emergency management andemergency powers, OS/OW limitations and permitting, and documents produced byorganizations and groups designed to harmonize state permitting processes related to the relief ofsize and weight limitations during emergencies or disasters.The review measured how the system works in practice by examining the CVSA EmergencyDeclarations Portal for U.S. state declarations related to the size and weight limits of CMVs.Researchers conducted a detailed analysis of federal and state declarations affecting size andweight limits to explore the laws and regulations affecting the relief of OS/OW limits in disastersand emergencies in the United States.This chapter includes the following: ⢠A review of laws, regulations, and guidance. ⢠A literature review on various types of disaster and emergency declarations and overweight special permits. ⢠A summary of lessons learned about the overweight special permits process during past disasters and the COVID-19 pandemic. ⢠A review of the different federal, state, and local special permit systems, organizations, and their variances. ⢠A review of meeting notes from the Emergency Route Working Group.Primer on Laws and Regulations on the Federal and State LevelGiven the heavy reliance on statutes and regulations in this literature review, a brief and generalexplanation of the structure and implementation of laws and regulations at the federal and statelevel is necessary. Regulatory authority granted by the legislative branch to the executive branchappears in federal or state codes, while an executive branch department or agencyâsrules/regulations appear in federal or state regulations.At the federal level, Congress passes acts that, when signed by the president of the United States,become PLs. Public laws establish, fund, grant authority to, and limit the jurisdiction ofexecutive branch agencies. They do this through the creation or amendment of the U.S. Code(USC). Therefore, the authority for a department of the federal government (part of theExecutive Branch under the U.S. Constitution) to make rules will appear in the USC, while theregulations made by that agency will appear in the U.S. CFR. Figure 1 shows a brief explanation 8
and flow of laws, codes, and regulations. Similar systems exist at the state level, though thenaming conventions may vary. Administrative codes contain regulations, while statutory codescontain laws (Franklin County Law Library, 2022). Public Laws (PLs) Establish, fund, grant authority to, and limit the jurisdiction of executive branch agencies. United States Code (USC) Authority for a department of the federal government to make rules will appear in the USC. U.S. Code of Federal Regulations (CFR) Regulations made by agency appear in the CFR. Figure 1. Brief Explanation and Flow of Laws, Codes, and Regulations Administrative codes contain regulations, while statutory code contains laws.Legal documents and this literature review use the words rules and regulations interchangeably.Laws grant authority to make rules/regulations. Rules/regulations have the weight of law underthe legal authority a legislature grants. Under its rulemaking authority, the department/agency ofthe executive branch of the federal or state government implements regulations through anadministrative process also defined by federal or state law. For the federal government, thisadministrative procedure appears in Chapter 5 of Title 5 of the USC (5 USC 500 et seq.). Statesmay adopt a similar standardized rulemaking procedure across their agencies, though withsignificantly more variation.Likewise, the legislative branch may enumerate additional powers or limit powers of theexecutive branch through laws and the U.S. or state code within the confines of the authoritygranted to the executive and legislative branches under the U.S. or state constitution. In this way,the president or a governor may execute the laws of the United States or their state in anemergency or disaster under laws passed by a legislature or enumerated in their respective stateconstitutions.Federal and state departments and agencies may also clarify rules/regulations. Theseclarifications generally explain how a department or agency will interpret or enforce regulation.Likewise, state attorney generals may also issue clarifications to state law that interpret state law.These interpretations can affect regulation and regulatory authority and enforcement by a stateagency or department. Finally, both state and federal courts may rule on lawsuits related tospecific laws or regulations that result in the revision or nullification of a law or regulation, orthe court may issue a ruling on a law or regulation that provides an interpretation of the law orregulation or its enforcement, thereby limiting or expanding its provisions.In addition to federal and state-issued regulatory guidance, independent organizations like theNational Fire Protection Association (NFPA) issue best practices guidance. These independent 9
documents do not carry the force of law directly. That said, guidance can become part of the lawor become binding through contractual means between levels or agencies of government. Thesemeans of obtaining compliance with mandates outside of authorities in the USC or state code orconstitutional authority often come with financial incentive or penalty to encourage compliance.For example, the federal government obtained state compliance with several federal traffic safetymandates and the legal drinking age by withholding federal highway money from states not incompliance.States may similarly apply financial measures to obtain compliance at a county, parish, ormunicipal level. A law or regulation may grant authority to a department or agency to cut orwithhold funding for a program unless the government or entity receiving that funding complieswith guidance or other mandates. Likewise, many federal and state grant programs includeprovisions that require applicants to comply with guidelines or other rules if they wish to applyfor and receive the grant. An example is the requirement for states to implement the NationalIncident Management System as defined in FEMA guidance documents if they wish to receiveFEMA grant funds.Finally, a federal or state law or regulation may reference a guidance document, thus making it astandard applicable under the law. The most common example of this in the United States iswhen local building codes reference NFPA standards or state regulatory authoritiesâ referenceNFPA standards related to the training and operations of first responders.Defining Emergency and DisasterSome confusion arises in the freight community when discussing emergency and disasterdeclarations because such declarations may rely on different elements of law that defineemergency and disaster differently. More specifically, relief from overweight restrictions duringdisaster includes two different elements of federal law, though only one applies broadly to allstates.Specifically, 23 USC 127(h)(i) requires a presidential declaration under the Robert T. StaffordDisaster Relief and Emergency Assistance Act (42 USC 5121 et seq. [âand what followsâ]),before states may issue special permits to overweight vehicles for divisible loads. When PublicLaw 112-141, the Moving Ahead for Progress in the 21st Century Act (MAP-21), added thelanguage for 23 USC 127(h)(i) to the USC, FHWA issued implementation guidance for states.This guidance explicitly stated the three conditions necessary for states to issue special permitsunder 23 USC 127(h)(i): ⢠The president has declared an emergency or a major disaster under the Stafford Act. ⢠The permits are issued in accordance with state law. ⢠The permits are issued exclusively to vehicles and loads that are delivering relief supplies (Lindley, 2013).However, the preceding section of the law, 23 USC 127(h)(1) and (2), which applies only to fuelshipments between Augusta and Bangor, Maine, on Interstate 95 for use by the Air NationalGuard base at Bangor, requires only a ânational emergency.â That section refers to emergencypowers in the USC under Title 10, as regulated by the National Emergency Act, 50 USC 1601 et 10
seq., not the Stafford Act, though presumably a Stafford Act declaration affecting that route orotherwise related to emergency shipments of fuel to Bangor would also qualify.The Disaster Relief Act of 1974 and the Robert T. Stafford Disaster Relief and EmergencyAssistance Act of 1988 that amended it defines an emergency as: Any occasion or instance for which, in the determination of the President, federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States (Congressional Research Service [CRS], 2013).That definition is the one that applies to Stafford Act declarations. There is a separate anddifferent definition related to the FMCSR that regulates topics like CMV hours of operation.This emergency definition, contained at 49 CFR 390.5, states: Emergency means any hurricane, tornado, storm (e.g., thunderstorm, snowstorm, ice storm, blizzard, sandstorm, etc.), high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, mud slide, drought, forest fire, explosion, blackout, or another occurrence, natural or man-made, which interrupts the delivery of essential services (such as electricity, medical care, sewer, water, telecommunications, and telecommunication transmissions) or essential supplies (such as food and fuel) or otherwise immediately threatens human life or public welfare, provided such hurricane, tornado, or other event results in: (1) A declaration of an emergency by the President of the United States, the Governor of a State, or their authorized representatives having authority to declare emergencies; by FMCSA; or by other Federal, State, or local government officials having authority to declare emergencies; or (2) A request by a police officer for tow trucks to move wrecked or disabled motor vehicles.Further, 49 CFR 390.5 defines several other emergency conditions and emergency relief: Emergency condition requiring immediate response means any condition that, if left unattended, is reasonably likely to result in immediate serious bodily harm, death, or substantial damage to property. In the case of transportation of propane winter heating fuel, such conditions shall include (but are not limited to) the detection of gas odor, the activation of carbon monoxide alarms, the detection of carbon monoxide poisoning, and any real or suspected damage to a propane gas system following a severe storm or flooding. An âemergency condition requiring immediate responseâ does not include requests to refill empty gas tanks. In the case of a pipeline emergency, such conditions include (but are not limited to) indication of an abnormal pressure event, leak, release, or rupture. 11
Emergency relief means an operation in which a motor carrier or driver of a CMV is providing direct assistance to supplement State and local efforts and capabilities to save lives or property or to protect public health and safety because of an emergency as defined in this section.It is important to note that only presidential declared disasters under Stafford Act authorityenable states to issue special permits. Other federal emergency declarations do not enable thestates to issue OS/OW special permits, except for fuel deliveries to the Air National Guard basein Bangor, Maine. Confusion arises in the freight community when discussing emergency and disaster declarations because such declarations may rely on different elements of law, which define emergency and disaster differently. More specifically, relief from overweight restrictions during disaster includes two different elements of federal law, though only one applies broadly to all states.The definitions of emergency above apply to exemptions and waivers to the FMCSR inemergency conditions (see further discussion below). State and federal emergency declarationsaffecting OS/OW vehicle permits may refer to both the special permitting process under 23 USC127(h)(i) and the FMCSR waivers.However, Stafford Act declarations are not the only kind of emergency power available to thepresident or states. The president can also declare national emergencies under authority grantedin at least 137 distinct parts of the USC, including the Insurrection Act, in accordance with theNational Emergency Act of 1976, codified at 50 USC 1601 to 50 USC 1651 (Brennan Center forJustice at New York University School of Law, 2019).Historically, presidents have generally declared national emergencies via executive order orproclamation. Federal statutes do not define the meaning of national emergency, allowing forbroad interpretation by the president (who has determinative authority under the Stafford Act aswell). Further discussion of this topic appears in the sections below.Additionally, some emergency powers exist within the executive branch of state and federalgovernments that fall to members of the Cabinet (at the federal level) or leadership in executivebranch agencies, or the heads of state agencies (some of whom are elected, depending on thestate). For example, the Secretary of the Department of Health and Human Services (HHS) candeclare a public health emergency under Section 319 of the Public Health Service Act. Likewise,some emergency authorities exist within state health departments and state DOTs, among otheragencies.At the state level, the declaration of a state emergency or disaster is equally varied. Statescodified elements of the Stafford Act to qualify for federal assistance in disasters, thusestablishing a state system of disaster declaration. Governors and state legislatures also possesswidely divergent emergency powers under both their stateâs constitution and statutes. The formand limits of these powers vary from state to state. 12
Further, some states grant broad emergency authority to governors with little or no legislativeoversight. Therefore, the state powers available to some governors may be broader than thoseavailable to the president at the federal level, especially concerning the imposition of martial lawand the use of military forces (discussed further below).Likewise, disaster and emergency declarations can overlap and relate to one another. Forexample, following a hurricane, a state may (a) request a federal disaster declaration under theStafford Act; (b) issue a declaration waiving part of the FMCSR for drivers deliveringemergency relief supplies while also establishing special permits for overweight divisible loadsunder 23 USC 127; (c) declare a state emergency under state law and deploy the National Guardto prevent looting in damaged areas; and (d) request that federal troops assist with restoring orderin those areas under elements of the Insurrection Act.Likewise, as the COVID-19 pandemic showed, the same event/incident can have a public healthemergency, presidential and state disaster declarations, and both state and federal emergencypowers invoked. In each case, the authority cited for the declaration, the powers invoked, and therole played by federal and state agencies will vary. The form and limits of emergency powers vary from state to state. Governors possess divergent emergency powers as defined by their stateâs constitution and statutes. In some states, the state legislature or another government official may hold emergency powers exercised by a governor in another state.Disaster DeclarationsDisaster declarations are the system by which local communities, counties/parishes, states, andthe federal government respond to disasters, both natural and man-made. Since 1988, this systemof disaster declaration has operated at the federal level under the Stafford Act.Because of its frequency of use, Stafford Act declarations and disaster authority are wellestablished and practiced across the United States, and presidential declarations have occurredunder every presidential administration since its inception. This system of disaster declaration isthe one most associated with natural disasters in the United States, even though its authorityextends to other areas.Stafford Disaster DeclarationsThe Robert T. Stafford Disaster Relief and Emergency Assistance Act (Public Law 100-707),signed into law on November 23, 1988, established the present statutory authority for federaldisaster responses. Each state within the United States has implemented some aspect of thefederal law into state law, thus creating a system across states of requesting a declarationbetween county or parish and the governor, similar to the system the Stafford Act implementedbetween governors and the president. At the federal level, disaster response generally falls underthe authority and responsibility of FEMA, part of the Department of Homeland Security since itscreation in 2002.When the state requests a federal disaster declaration through FEMA, the president can thendeclare a federal disaster. In a known, impending disaster (e.g., a hurricane), a state can 13
preemptively declare an emergency/disaster and apply for federal assistance. In addition to aidfrom federal agencies to a state or local government, a disaster or emergency declaration allowsfor reimbursem*nt of some state and local expenditures in responding to the disaster throughprograms administered by FEMA. In significant disasters, Congress may authorize additionalfunding and create special relief programs, as it did after Hurricanes Katrina and Sandy or duringthe COVID-19 pandemic.State, County/Parish, and Local Disaster DeclarationsAlthough the system varies in each state, in the event of a disaster that overwhelms a localcommunity or countyâs ability to respond with local response assets or those provided throughmutual aid, a municipal or county/parish executive (mayor or county official) may request aidfrom the governor, who can declare a county or state disaster. Under provisions of the StaffordAct, governors can then make a request from the federal government for assistance if the disasterexceeds the ability of the state to respond. Not all emergencies or disasters rise to the level ofpresidential declarations. Some localized incidents may rise only to a state level. While theseincidents do not meet the requirements necessary for the special permitting of OS/OW vehiclesunder federal statutes, they may meet the requirements for FMCSR relief in some cases (seediscussion below). Not all emergencies or disasters rise to the level of presidential declarations. Some localized emergencies or disasters may only require state-level declarations. These may be eligible for FMCSR relief in some cases, though not for special permitting for OS/OW vehicles on interstate highways under federal statutes, which always requires a presidential declaration.Emergency DeclarationsAs previously noted, some national emergency declarations (that are not Stafford Actdeclarations) may only create the federal authority to authorize overweight fuel shipments onI-95 between Augusta and Bangor, Maine, at the determination of the Secretary ofTransportation and the Secretary of Defense. However, during the preparation of this literaturereview, the panel asked questions regarding civil disturbances and other emergency powers.Likewise, the research teamâs examination of emergency declarations for OS/OW vehiclesposted to the CVSA website found other authorities, both federal and state, cited by states. Inresponse to the questions raised by the panel, this section explores some of those other forms ofemergency declaration and the CVSA declarations outside of Stafford Act declarations, with theimportant note that these emergencies do not apply to any special permitting process for theinterstate highway system under 23 USC 127(i), which requires a Stafford Act declaration.Federal EmergenciesAt both the federal and state level, emergency powers vary widely from powers associated withthe Stafford Act and the state systems of the disaster declaration. Emergency powers fall underdifferent laws at the federal and state level depending on the nature of the emergency. Further,some emergency powers, like those associated with public health emergencies, may be thepurview of department secretaries or agency administrators within the executive branch of thefederal or state government rather than the chief executive. 14
During the COVID-19 pandemic, the Section 319 Public Health Emergency authority appearedin several declarations on the CVSA website. An examination found those declarations also(correctly) cited Stafford Act declarations. However, several state-only declarations excludedinterstate and national defense highways, relying solely on state statutes and powers for OS/OWspecial permitting on state and local roads.Section 319 Public Health EmergenciesSection 319 of the Public Health Service Act (PL 115-96, as amended) authorizes the HHSsecretary to declare a public health emergency if a disease, disorder, or bioterrorist attack poses athreat to public health. This action does not require a request from a state, unlike Stafford Actdeclarations. A Section 319 declaration authorizes the secretary of HHS to provide grants, entercontracts, and conduct and support investigations into causes, treatments, and preventivemeasures against the disease, disorder, or bioterrorist attack. The secretary can also grantextensions or waive sanctions relating to the submission of data or reports to HHS required understatute or regulation. The secretary may also access funds appropriated to the Public HealthEmergency Fund (if Congress appropriates money to the fund) (HHS, 2019).National Emergency Act EmergenciesThe National Emergencies Act (NEA) of 1976 (PL 94-412, 50 USC 1601 et seq.) grantsauthority to the president to declare national emergencies subject to congressional review. TheNEA focused primarily on terminating emergency declarations and powers. Senate Report 93-549, Report of the Special Committee on the Termination of National Emergency, examined the40-year national emergency originally declared by President Franklin Roosevelt in 1933 underthe Trading with the Enemy Act (1917) that Roosevelt used to block gold and silver transactionsas an economic response to the Great Depression. Subsequently, the NEA rescinded presidentialpowers granted under previously declared, but never terminated, emergencies and established ameans for congressional review and termination of all future declared national emergencies.The authority for declaring national emergencies comes from a broad swath of law, much of iteconomic related or under presidential authority as commander-in-chief of the U.S. ArmedForces under Title 10 of the USC. Presidents declaring national emergencies do so under a powergranted them by Congress in the USC, which they cite when declaring the emergency in anexecutive order or presidential proclamation, which is transmitted to Congress and published inthe Federal Register in accordance with the provisions of 50 USC 1621. One study identified 137instances of the USC granting emergency powers. Since 1976, most of these emergency powershave fallen under the broader constraints of the NEA.Thus, all such emergency declarations, no matter the law cited to authorize them, become subjectto the provisions of the NEA under 50 USC 1622. This section of the act defines thecirc*mstances under which such declarations terminate and establishes a recurring six-monthreview period for Congress, at which time both houses of Congress must consider a vote on ajoint resolution to terminate the emergency.Despite 50 USC 1622 reviews, some national emergencies continue for many years. Forexample, a national emergency declared by the Carter administration in 1979 applying sanctionson the Iranian government remains in effect. This emergency, the first declared following thepassage of the NEA in 1976, is entering its 44th year, an ironic circ*mstance given that the 15
original impetus for the NEA focused on terminating Rooseveltâs depression-era nationalemergency declaration, then 43 years old. Most economic sanctions that the United States has onother countries fall under the authority of the NEA and make up the bulk of such emergencydeclarations. However, NEA authority also covers some public health events, like the nationalemergencies declared for the COVID-19 pandemic and the 2009 H1N1 Influenza pandemic(Executive Office of the President, 2009, 2022). Further, NEA authority can apply to militaryand security situations, such as the terrorist attacks of September 11, 2001, or the most recentNEA declaration of April 21, 2022, that prohibited most Russian-affiliated vessels from enteringU.S. ports because of the Russian invasion of Ukraine (White House, 2022).NEA emergency declarations usually have bipartisan support in Congress, and most declarationsrelated to economic sanctions over the last 20-plus years remain in effect. Only one nationalemergency declaration by a president since the passage of the NEA engendered significantcongressional pushback immediately after its declaration (Proclamation 9844âDeclaring aNational Emergency Concerning the Southern Border of the United States, February 15, 2019).However, Congress did not pass a veto-proof majority resolution terminating the declaration.Instead, President Joe Biden terminated this emergency declaration within weeks of hisinauguration. Unlike other national emergency declarations, this proclamation used constructionauthority under 10 USC 2808, which authorizes military spending for construction projectsduring a declared war or national emergency. Using the emergency declaration and thisauthority, the president then appropriated money for a project for which Congress had not passedappropriations. This action represented a new and unusual use of the NEA and led to somediscussion of modifying the NEA, as yet unrealized.Civil Disturbances, Posse Comitatus, and the Insurrection Act Based on questions from the panel regarding civil disturbances, an explanation of federal emergency powers relating to civil disturbances and the Insurrection Act follows.Because of limitations on the use of military forces to carry out law enforcement in the UnitedStates (defined in the Posse Comitatus Act of 1878, PL 45-264, and 18 USC 1385), presidentshave limited powers to employ U.S. military forces in response to civil disturbances. The originalimpetus for the Posse Comitatus Act came from southern states during the post-Civil WarReconstruction era. At that time, the U.S. Army exercised police powers in the formerConfederacy. Following the end of Reconstruction and the restoration of statehood, the formerConfederate statesâ representatives in Congress led an effort to restrict future uses of militaryforces for such purposes. Consequently, civil disturbances resulting in an emergency generallyfall to state authority (discussed further below).Specifically, 18 USC 1385 states, âWhoever, except in cases and under the circ*mstancesexpressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army,the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwiseto execute the laws shall be fined under this title or imprisoned not more than 2 years, or both.âUnder U.S. law, a posse comitatus is a group of people mobilized or deputized by a sheriff toenforce the law, and it is where the âold westâ idea of a posse originates. Essentially, the act 16
limits the use of the military for law enforcement except when âauthorized by the Constitution orAct of Congress,â under penalty of fine or imprisonment.However, 18 USC 1385 does not prohibit military intervention under the Insurrection Act(10 USC Section 251 et seq.) because the Insurrection Act authorizes military force by âAct ofCongress.â The Insurrection Act is one of the oldest laws in the United States and one of its morecontroversial. The origins of the act date to 1792âs Calling Forth Act. Invoked 30 times in the230 years since its passage, the repeated use of the Insurrection Act against striking workerscontributed to controversy surrounding the law. Further, in 1932, the Army acted againstcivilians without authorization to do so during the Washington, D.C., Bonus Army incidentunder the Hoover administration. Douglas MacArthur ignored the orders of the president toprovide Army support to the police in Washington, D.C., and, in some interpretations, insteadacted as though the president had invoked the Insurrection Act, which he had not. The BonusArmy incident raised several concerns regarding the Insurrection Act and represented a violationof the Posse Comitatus Act, which was never addressed or resolved, though it became the subjectof debate since (Allen & Dickson, 2004). Because of limitations on the use of military forces to carry out law enforcement in the United States (defined in the Posse Comitatus Act of 1878, PL 45-264, and 18 USC 1385), presidents have limited powers to employ U.S. military forces in response to civil disturbances.The most used portion of the Insurrection Act is Section 251, which authorizes the deploymentof active military forces if the state legislature (or governor, if the legislature is unavailable)requests federal aid to suppress an insurrection (Nunn, 2022). The last use of Section 251 of thelaw was in response to the Los Angeles riots in 1992 (Nunn & Goitein, 2022).Sections 252 and 253 of the Insurrection Act allow the president to deploy the military without arequest from the state, even against a stateâs express wishes. Section 252 authorizes the presidentto deploy military forces to enforce federal law or suppress rebellion whenever âunlawfulobstructions, combinations, or assemblages, or rebellionâ make ordinary enforcement of federallaw âimpracticableâ by the âordinary course of judicial proceedingsâ (Nunn, 2022).Section 253 authorizes military intervention in a state under two circ*mstances. The firstauthorizes the president to deploy military forces to a state to suppress âany insurrection,domestic violence, unlawful combination, or conspiracy that so hinders the execution of the lawsthat any portion of the stateâs inhabitants are deprived of a constitutional right, and stateauthorities are unable or unwilling to protect that rightâ (Nunn, 2022). The last time presidentsused this portion of the act was in the 1950s and 1960s to enforce the desegregation of schoolsfollowing Brown v. Board of Education and the passage of civil rights laws, ending Jim Crow erasegregation. No president has invoked this section of the act since Lyndon B. Johnsonfederalized the Alabama National Guard (Nunn & Goitein, 2022).The second part of Section 253 authority, and the most controversial, allows the deployment offederal troops to suppress âany insurrection, domestic violence, unlawful combination, orconspiracyâ when it âopposes or obstructs the execution of the laws of the United States orimpedes the course of justice under those lawsâ (Nunn, 2022). As legal scholars note, this section 17
is very broad and could theoretically apply to the use of military force against any two peopleconspiring to break federal law.Further, the Insurrection Act fails to define the terms it uses to authorize the use of militaryforces. Subsequently, two Supreme Court cases applied interpretations of the act: first, Martin v.Mott (1827) declared the definition of the terms and the conditions under which the law applies,as written by Congress, are exclusively up to the president, and second, Sterling v. Constantin(1932), while not limiting presidential power to invoke the act, did limit the actions militaryforces may conduct under its authority, reserving jurisdiction to federal courts to review thelawfulness of any action military forces take under the actâs provisions (Nunn, 2022).Thus, while the federal government may conduct actions against the residents of a state under theInsurrection Act, it cannot violate their constitutional or other legal rights. Prior to Sterling v.Constantin, opponents argued at the time, and historians and legal scholars still argue, that someinvocations of the Insurrection Act did violate constitutional rights. In particular, theinvolvement of the U.S. Army under General MacArthur in clearing out the encampment of theBonus Army in Washington, D.C., in 1932, which did not invoke the act, raised several issuesrelated to the use of the military against U.S. citizens that related to the Insurrection Act andPosse Comitatus Act (Allen & Dickson, 2004).Likewise, no federal statute grants authority to the federal government to declare martial law,wherein military forces seize control of and administer a local or state government, though somelegal scholarsâ interpretations suggest that the Supreme Court implied such powers exist (Lau &Nunn, 2020). States have the power to declare martial law if authorized by the state constitutionor state statute. Most states have some measure of executive or legislative emergency powerauthorizing such actions. For further discussion, see State Emergencies below.Additionally, federal security and law enforcement may conduct law enforcement actions duringcivil disturbances in a state when such disturbances threaten or occur on federal property wherethose federal agencies have jurisdiction. It was under this authority that President Trumpdeployed federal law enforcement to several states during the George Floyd and Black LivesMatter protests in the summer of 2020 [Executive Order (EO) 13933, June 22, 2020; 40 USC1315]. Under this legal authority, such forces protect federal property or personnelâforexample, a federal courthouse or federal building. Although these forces may or may notcoordinate their actions with state or local law enforcement in relation to a broader civildisturbance, they do not generally have jurisdiction outside of federal concerns. This aspect ofthe 2020 deployments remains a point of contention politically and in some of the states andcities where these federal forces and tactical teams deployed, especially because some of thedeployed personnel operated outside of their normal law enforcement and protective functions;for example, Customs and Border Protection agents were deployed to Seattle to protect federalbuildings (Brunner, 2020).State and federal law enforcement may also cooperate or work together when a civil disturbanceincludes criminal activity that falls under federal jurisdiction, like terrorism, kidnapping, or theuse of weapons of mass destruction as defined under federal law. Under federal laws, the FederalBureau of Investigation (FBI) maintains exclusive jurisdiction over kidnapping, acts of terrorism,and the creation, possession, or use of weapons of mass destruction, though they may work 18
through and with local law enforcement. The FBI may also coordinate and work with themilitary, the Department of Homeland Security and its subsidiary agencies, and U.S. or foreignintelligence services, especially in cases involving weapons of mass destruction or when theperpetrators include foreign nationals. Likewise, even though the FBI retains jurisdiction it maywork with other federal agencies like the Bureau of Alcohol, Tobacco, Firearms, and Explosivesor the Drug Enforcement Agency. In all such cases, the authority for federal law enforcement isthe enforcement of federal law under their existing and normal course of duty.When federal military forces deploy or move within the United States, under mostcirc*mstances, the law requires them to coordinate with the state and authorities. This process isdiscussed further in subsequent sections. Generally, coordinated military movements includeconvoy movements or other movements of military vehicles or equipment that the Department ofDefense (DoD) or a stateâs National Guard coordinates with state DOTs and emergencymanagement officials. Given the sensitivity or classified nature of some of these movements,such coordination may involve a limited number of officials at the state level previously grantedclearances by the federal government.In a disaster or an emergency, federal military forces fall under state and local authority, actunder the direction and in support of elected state and local authorities. As previously noted,federal forces cannot conduct activities related to civilian law enforcement. This structure ofcivilian control means that federal military forces do not have the power of arrest, nor can theyconduct actions related to law enforcement against civilians in the United States except in certainproscribed circ*mstances related to the Insurrection Act and federal civil rights laws, aspreviously discussed.However, military police do have law enforcement powers when dealing with other militarymembers. Therefore, an active-duty (under Title 10 of the USC) military police officer mayconduct law enforcement within the confines of a federal military reservation under the UniformCode of Military Justice. Similarly, many federal agencies, including the DoD, have civilian lawenforcement operations as part of the security presence for their buildings and personnel. Theseforcesâ jurisdiction is, in most cases, limited to federal property. Federal law enforcementagencies like the FBI, Drug Enforcement Agency, and Bureau of Alcohol, Tobacco, Firearms,and Explosives have police powers granted to them under the USC to enforce specific federallaws or regulations. Likewise, some federal investigators, like those in the EnvironmentalProtection Agency, may also have arrest and other law enforcement powers related to theirauthority under federal law.Regarding the movement of military forces and their freight, the DoD and state National Guardunits follow U.S. and state DOT and FHWA regulations. Within the emergency powers of thepresident and the DoD, authority exists to waive many regulatory requirements during nationalemergency or time of war. However, the president and Congress rarely invoke these powers.Further, DoD regulations strictly regulate military roadway movements within the United Stateson public roads and require compliance with state and federal laws and regulations (U.S.Department of Defense, 2020). 19
Department of Defense regulations strictly regulate military roadway movements within the United States on public roads and require compliance with state and federal laws and regulations.State EmergenciesUnder state laws and state constitutional authorities, governors and legislatures possess theauthority to declare state emergencies. This power may exclusively fall to the governor, the statelegislature, or some combination thereof, depending on the state constitution and statutes. Sixstates (Alabama, Missouri, New Hampshire, North Carolina, Oklahoma, and West Virginia)authorize the legislature to declare an emergency, in addition to the governor (NationalConference of State Legislatures, 2022).Most states have some legislative checks on the governorâs emergency powers. Only a few stateslack legislative checks on executive emergency powers. Delaware, Hawaii, Illinois,Massachusetts, Mississippi, New Jersey, South Dakota, Tennessee, and Wyoming do notpresently include in their statutes legislative oversight of executive emergency powers (NationalConference of State Legislatures, 2022).Due to the widespread use of emergency powers and controversies surrounding their use duringthe COVID-19 pandemic, many states and U.S. territories reexamined and amended executiveemergency powers, a process that continues as of the writing of this literature review. Ten out of28 states passed legislation limiting executive emergency power in 2020, and 23 out of 47 statesand two territories enacted or adopted legislative limits on executive emergency power in 2021,with more than 300 bills or resolutions introduced that year. Five states enacted legislative limitson executive emergency powers in 2022, and 36 states and Puerto Rico also considered suchlaws (National Conference of State Legislatures, 2022).Further, U.S. citizens maintain their constitutional and civil rights, including that of habeascorpus, under states of emergency or martial law, and Supreme Court decisions maintain theright of citizens to petition federal courts for injunctive relief if a state declares martial law(Sterling v. Constantin, 1932). Although common in the 19th and early 20th century, especiallyin the 1930s, the last time a state-declared martial law was in 1963 in Cambridge, Maryland, dueto disorder surrounding desegregation. The last time the federal government declared martial lawwas in 1941 in Hawaii following the Pearl Harbor attack, and military rule lasted there until1944. While the federal government generally lacks authority to declare martial law in states,Hawaiiâs territorial status at the time and wartime conditions following the attack on PearlHarbor made room for such a declaration.State emergency declarations fall under a broad scope of emergencies, from public healthemergencies to civil disturbances. Unlike federal executive authority, limited by Posse Comitatusand other statutes, governors can deploy state military forces in response to emergencies andcivil disturbances and authorize them to conduct law enforcement activities. In most cases, thisinvolves deployment of the stateâs National Guard, operating under the governorâs orders and atstate expense rather than the federal funding that National Guard forces receive for trainingunder Title 32 of the USC or the Title 10 funds provided to active-duty forces and to federalizedNational Guard units activated and deployed by the DoD. 20
At the federal level, National Guard units operate under the regulations of Title 32 USC whenunder the control of the governor and under Title 10 USC when federalized. The National GuardBureau, which does not have command authority over state national guards, manages federalfunding and standards related to training and preparedness under Title 32. State law outlines theuse and pay of state military forces during state-ordered deployments and emergencies. The useof a governorâs state command authority is the means through which the Texas governorcurrently maintains Texas National Guard troops on state active duty near the Texas border withMexico, a mission funded by the state and under state authority.Twenty-two states and Puerto Rico also maintain state defense forces of volunteers not eligiblefor federal service and not part of the U.S. military. States deploy these volunteers in anemergency or disaster. Although many states deactivated such units in the 1980s and 1990s, themore recent trend is toward more specialized and better-trained state guard organizations capableof emergency management and response roles. For example, both Maryland and Texas maintainunits of professional medical personnel that volunteer to serve in support of public health orother emergencies where medical assistance is required. Maryland reorganized its state defenseforce in 2017, closely aligning it with supporting and assisting the state National Guard and itsmissions, supporting the Maryland Emergency Management Agency, and creating a new cybersecurity unit to assist state and local agencies with cyber security (State of Maryland, n.d.).Texas established the Texas Medical Reserve Corps in 2003 in response to the attacks ofSeptember 11, 2001 (Texas State Guard, n.d.).The laws governing state authority for both public health emergencies and other emergencies,like civil disturbances, vary widely from state to state and do not align with federal authorities inthe same way the system of disaster declarations under the Stafford Act tends to align at the stateand federal level. Further, because of controversies that arose over emergency powers during theCOVID-19 pandemic, many states continue to reevaluate these powers and authorities, with thelaw and regulations affecting public health emergencies still in a state of flux.State Disaster and Emergency Authority Under 23 USC 127(h)(i) and 49 CFR 390.23Appendix A contains a summary of state disaster and emergency authorities.Overweight and Oversize RegulationsAlthough the federal government establishes regulations affecting vehicles on the Interstate andDefense Highway System, it does not issue permits for OS/OW vehicles on those federallyregulated highways. States exclusively issue OS/OW permits. Further, most enforcement offederal and state OS/OW CMV laws and regulations falls to state or local law enforcement,though the U.S. Department of Transportation (USDOT) sets the standards for training CMVinspectors and the regulations they follow in their inspections.Federal Jurisdiction and AuthorityThe federal government issues guidance to the states regarding the regulation of weight and sizelimits for vehicles and regulates trucks engaged in interstate commerce. The Federal-AidHighway Act of 1956 created the National System of Interstate and Defense Highways (alsocalled the Dwight D. Eisenhower System of Interstate and Defense Highways in law). Title 23 21
USC-Highways, as amended over the years, includes the Federal-Aid Highway Act andsubsequent PLs related to the Interstate and Defense Highway System.Congress granted regulatory authority to the Secretary of Transportation at 23 USC 315 toâprescribe and promulgate all needful rules and regulations for the carrying out of the provisionsof [Title 23 of the USC].â This regulatory authority largely falls to USDOTâs FHWA, whileother authority is granted to FMCSA and the National Highway Traffic Safety Administration(NHTSA). While the federal government establishes regulations affecting vehicles on the interstate and defense highway system, it does not issue permits for OS/OW vehicles on those federally regulated highways. States exclusively issue OS/OW permits.Federal Highway AdministrationTitle 49âTransportation of the USC establishes USDOT and other government agencies relatedto transportation. 49 USC 104 grants authority to FHWA to carry out the duties and powersvested in the Secretary of Transportation under 32 USC Chapter 4. FHWA provides guidanceand regulation related to the National System of Interstate and Defense Highways.FHWA regulations related to truck size and weight, route designations, and length, width, andweight limitations appear in 23 CFR Part 658, while certification of size and weight enforcementappears in 23 CFR Part 657.Federal Motor Carrier Safety AdministrationThe Motor Carrier Safety Improvement Act of 1999, codified in 49 USC 113 et seq., establishedand granted regulatory authority to FMCSA to carry out the duties and powers vested in theSecretary of Transportation related to motor carriers or motor carrier safety except as otherwisedelegated by the secretary to any agency of USDOT other than FHWA, and to carry outadditional duties and powers prescribed by the Secretary of Transportation. Under this authority,FMCSA must consult with FHWA and NHTSA on matters related to highway and motor carriersafety.FMCSA, part of FHWA until 2000, establishes standards for the testing and licensing of CMVdrivers, collects and disseminates data on motor carrier safety, uses the data to improve safetyperformance and remove high-risk carriers from the National System of Interstate and DefenseHighways, and provides financing to states for roadside CMV inspections and other CMV safetyprograms, through which it obtains state regulatory alignment with federal regulations andguidance. FMCSA also regulates the transportation of hazardous materials and supports thedevelopment of unified motor carrier safety requirements and procedures in North America, bothacross states within the United States and between the United States, Canada, and Mexico.Regarding OS/OW special permits, declarations establishing special permitting during a disasteror emergency may also waive FMCSA regulations related to hours of service and othercomponents of the FMCSR. A more thorough examination of this aspect appears under theWaivers and Special Permits section below. 22
National Highway Traffic Safety AdministrationCongress establishes and grants regulatory authority to NHTSA in 49 USC Chapter V. NHTSAregulates vehicle performance standards and partners with state and local government to collectdata and create measures to reduce deaths, injuries, and economic losses from motor vehiclecrashes (NHTSA, n.d.). These measures include studies of crashes involving CMVs.Federal Weight and Size Limitation RegulationsFederal Weight Limits23 USC 127 established maximum weights for the National System of Interstate and DefenseHighways. However, other roads within a state fall under state jurisdiction. Congress requiredthe transportation secretary to withhold 50 percent of highway funding apportioned to a state inany fiscal year in which âthe State does not permit the use of the Dwight D. Eisenhower Systemof Interstate and Defense Highways within its boundaries by vehicles with a weight of twentythousand pounds carried on any one axle, including enforcement tolerances, or with a tandemaxle weight of thirty-four thousand pounds, including enforcement tolerances, or a gross weightof at least eighty thousand pounds for vehicle combinations of five axles or more.âSubsequent articles in this section of the code exempt certain specific highway segments in asmall number of states from the provisions of the code without explanation as to the reasons forsuch exemptions. Some of these are grandfathered rights, or they relate to a route-specificcommodity involving weights or sizes of loads that otherwise exceed the provisions of the codeor regulation.FHWA further defined these weight limits in regulation under the authority of 23 USC 315 at29 CFR Part 658.17. It is important to note that 29 CFR 658.17 limits apply only to the NationalSystem of Interstate and Defense Highways and âreasonable access thereto.â However, as notedabove, a state that does not apply the weight and size limits defined in 23 USC 127 couldpotentially lose up to 50 percent of its highway funding at the discretion of the Secretary ofTransportation. Consequently, states adopted these rules in state law, with variations applyingstate-level limitations and regulations on weight and size.However, several states received special clauses in the relevant statute and regulations thatexempted them from some provisions. These are typically grandfathered exemptions that applystatewide, or they relate to a commodity that moves on vehicles or on specific routes thatotherwise exceed the provisions of the code or regulation (23 CFR 657-658, 2007; 77 FR 105,2012).Divisible and Non-divisible LoadsTitle 23 of the CFR defines a non-divisible load in 23 CFR 658.5 as follows: (1) As used in this part, non-divisible means any load or vehicle exceeding applicable length or weight limits which, if separated into smaller loads or vehicles, would: (i) Compromise the intended use of the vehicle, i.e., make it unable to perform the function for which it was intended; 23
(ii) Destroy the value of the load or vehicle, i.e., make it unusable for its intended purpose; or (iii) Require more than 8 work hours to dismantle using appropriate equipment. The applicant for a non-divisible load permit has the burden of proof as to the number of work hours required to dismantle the load. (2) A State may treat as non-divisible loads or vehicles: emergency response vehicles, including those loaded with salt, sand, chemicals or a combination thereof, with or without a plow or blade attached in front, and being used for the purpose of spreading the material on highways that are or may become slick or icy; casks designed for the transport of spent nuclear materials; and military vehicles transporting marked military equipment or materiel.Divisible loads are loads not meeting the above definition. States can issue special divisible loadoverweight permits under 23 USC 127 authority if the situation meets the following threeconditions: ⢠The U.S. president issues a Stafford Act declaration for the emergency/disaster. ⢠The state issues the special permits according to state law. ⢠The state issues the special permits exclusively to vehicles and loads delivering relief supplies (U.S. Department of Transportation, 2020).Under 23 USC 127, any OS/OW special permit issued by a state expires no later than 120 daysafter the date of the presidential disaster declaration unless the president issues an extension, asoccurred during the COVID-19 pandemic. In those cases, states issued their own extensions,citing the presidential extension. Example of non-divisible loads include wind turbines or cranes. The carrier bears the burden of proof on the more than 8 work hours required to dismantle the load. Examples of divisible loads include medical supplies, building materials, food and drink, paper products, food supply chain (including livestock), and debris.Federal Size LimitsCongress set truck size limitations on the National System of Interstate and Defense Highways.Length limitations are defined and limited in 49 USC 31111, and 49 USC 31112 definesproperty-carrying unit limitations. Width limitations are defined and limited in 49 USC 31113.FHWA issues size regulations under 23 CFR Part 658. FHWA also provides a pamphlet titledFederal Size Regulations for Commercial Motor Vehicles that illustrates the regulations found in23 CFR Part 658, which implements the statutes in 49 USC 31111, 31112, 31113, and 31114(U.S. Department of Transportation, FHWA, 2004).Like the statutes and regulations regarding weight limits, some states received special clauses inthe relevant statute and regulations that exempted them from some provisions. These aretypically grandfathered exemptions that apply statewide, or they relate to a commodity that 24
moves on vehicles on specific routes that otherwise exceed the provisions of the code orregulation (U.S. Department of Transportation, FHWA, 2004)Access49 USC 31114 defines and regulates access to the National System of Interstate and Defense; itstates: (a) Prohibition on Denying AccessâA State may not enact or enforce a law denying to a CMV subject to this subchapter or subchapter I of this chapter reasonable access betweenâ (1) the Dwight D. Eisenhower System of Interstate and Defense Highways (except a segment exempted under Section 31111(f) or 31113(e) of this title) and other qualifying Federal-aid Primary System highways designated by the Secretary of Transportation; and (2) terminals, facilities for food, fuel, repairs, and rest, and points of loading and unloading for household goods carriers, motor carriers of passengers, any towaway trailer transporter combination (as defined in Section 31111(a)), or any truck tractor- semitrailer combination in which the semitrailer has a length of not more than 28.5 feet and that generally operates as part of a vehicle combination described in Section 31111(c) of this title. (b) ExceptionâThis section does not prevent a State or local government from imposing reasonable restrictions, based on safety considerations, on a truck tractor- semitrailer combination in which the semitrailer has a length of not more than 28.5 feet and that generally operates as part of a vehicle combination described in Section 31111(c) of this title.Waivers, Regulatory Relief, and Special PermitsOverweight permits for divisible and non-divisible loads under 23 USC 127 are special permits.FMCSR exemptions are waivers, or relief, from regulations. State or federal declarations mayrefer to both special permits and FMCSR exemptions in an emergency declaration. Part of theconfusion regarding terminology surrounding the special permits a state can implement under23 USC 127 authority has to do with other emergency powers under the transportation code.Specifically, 49 CFR 390.23 of the FMCSR, administered by FMCSA, includes provisions thatoccur when the president, governor, or local government issues a declaration of emergency under49 CFR 390.5.These exemptions to the FMCSR lift some safety regulations, including hours of service, forinterstate motor carriers providing emergency relief. Additionally, utility service vehiclesengaged in âoperating, repairing, and maintainingâ public utilities and government-ownedvehicles always have an exemption to hours-of-service limitations under the FMCSR. FMCSAand USDOT, as well as states, refer to these exemptions to the FMCSR as waivers, exemptions,or regulatory relief. 25
The confusion in the freight community about special permitting under 23 USC 127 arisesbecause many state declarations refer to both the special permitting process defined by 23 USC127 and the exemptions/waivers occurring under 49 CFR 390.23. To be clear, waivers from theFMCSR occur under a different authority in the federal code (49 CFR 390.23) and often occursimultaneously with any special permitting a state implements under 23 USC 127. Further, aStafford Act declaration can trigger FMCSR waivers for a set period following the declaration,or FMCSA can declare a regional emergency providing relief from 49 CFR Parts 390 to 399 (49CFR 390.23, 2005).Special permitting of OS/OW loads requires a Stafford Act declaration, and states mustimplement special permitting under federal and state statutes, and only for vehicles and loadsdelivering relief supplies. Thus, while FHWA may issue a statement or clarification regardingspecial permitting, states must act to implement that declaration as the permit issuing authority,whereas FMCSA possesses the authority to exclusively waive the FMCSR in somecirc*mstances, a power the FHWA does not possess in regard to special permitting.State Jurisdiction and AuthorityState law regulates weight and size limits for vehicles traveling on roads within the state. Statelaw also defines the state agency responsible for regulating OS/OW vehicles. The state agencygranted authority under state law for vehicle permitting issues regulations and policies definingthe process for obtaining permits. This permitting process is exclusively a state power since thefederal government does not have the authority to issue permits for OS/OW vehicles.Because the name and nature of the state agency regulating weight and size and the permittingprocess can vary from state to state, AASHTO refers to the agency issuing OS/OW generalpermits as the Truck Permit Issuing Office. Thus, while one state may grant authority to thestateâs DOT, another may place that authority within a DMV or in a law or code enforcementagency like the State Police, Highway Patrol, or Department of Public Safety. In each case, thatstateâs responsible agency is referred to generally as the Truck Permit Issuing Office. In somestates, the Truck Permit Issuing Office may be different than the agency responsible forregulating and enforcing weight and size restrictions.A discussion of state weight and size laws and regulations appears in the next main section ofthis review, with state authority and regulation summarized in Appendix A.Territory Jurisdiction and AuthorityU.S. territories issue weight and size permits the same as states, via the Truck Permit IssuingOffice.Tribal Jurisdiction and AuthorityNative American tribal nations participate in the Tribal Transportation Program (TTP)administered by FHWA, the U.S. Department of the Interior, and the Bureau of Indian Affairs,Division of Transportation (BIA-DOT). The BIA-DOT cooperates with tribal nations throughcontracts, grants, compacts, and other agreements under the authority granted in 23 USC 201 etseq. BIA regulations related to the TTP appear in 25 CFR 170 et seq. 26
BIA-DOT supports the operation and maintenance of BIA roads on native lands. BIA roadseligible for federal funding appear in the National Tribal Transportation Facility Inventoryadministered by BIA-DOT. Tribal nations establish rules and permitting procedures for OS/OWvehicles on BIA roads within their land (CRS, 2016, 2017). For example, the Mandan HidatsaArikara Department of Transportation (MHADOT) issues business permits and collects atransportation impact permit fee on the Fort Berthold Indian Reservation in North Dakota.MHADOT also enforces vehicle weight regulations on the reservation and issues special permitsand OS/OW permits (Mandan Hidatsa Arikara Department of Transportation, n.d.). Some tribalnations administer their roadways through a Department of Public Works rather than a DOT orthrough other organizations established by the tribal government. Some tribes may haveagreements with state governments for permitting or enforcement.In each case, the role of the tribal government in permitting and the measures it chooses to enact(or not enact) for truck permitting depend on the system of government established by the tribeas a sovereign nation, the treaty the tribe has with the U.S. government, and any agreements thetribal government may establish with state, county, or local governments. In other words,different tribes in different locations may have different systems in place for truck permitting andenforcement.States may also establish liaisons or other tribal affairs offices to negotiate agreements betweenthe state and tribal nations and coordinate state and tribal nation DOT regulations. For example,the Minnesota Department of Transportation (MNDOT) Office of Tribal Affairs coordinates anddevelops MNDOT âpolicies, agreements, partnerships, employment training, and contracts tocreate more efficient, improved, and beneficial transportation services with the 11 Tribal Nationsin Minnesotaâ (MNDOT, n.d.). The MNDOT Office of Tribal Affairs also provides a trainingprogram to MNDOT and other state employees to learn about the stateâs tribal governments,history, culture, and traditions to improve cooperation between state employees and the tribalnations.State Truck Size and Weight Limit Regulations and PermittingFederal RestrictionsIn May 2015, the U.S. Secretary of Transportation submitted a report to Congress required bySection 32802 of PL 112-141, the Moving Ahead for Progress in the 21st Century Act (MAP-21)(FHWA, 2015). This report compiled state laws in effect on or before the enactment of PL 112-141 in October 2012 that allowed OS/OW vehicles to operate on the National Highway System(i.e., the National System of Interstate and Defense Highways). This study, conducted inpartnership with AASHTO, examined those exceptions to weight limits in each state, includingthose authorized in the USC, and a list of all applicable limits, laws, and regulations in each stateon weight and size limits.As noted in the report, PL 97-424, the Surface Transportation Assistance Act of 1982, requiredseveral federal limitations for the National System of Interstate and Defense Highways,including an 80,000-pound gross vehicle weight (GVW) limit, limits on truck tractor-trailervehicle length limitations, and limits on tandem trailer combinations. Such limits by extensionapplied not only to the National System of Interstate and Defense Highways but to vehiclestransiting state roads between terminals or service locations and the National System of Interstate 27
and Defense Highways since states, under federal law, must provide reasonable access to theinterstate system.PL 97-424 established several vehicle dimension requirements: ⢠States must allow vehicles 102 inches wide on interstate and other federally funded highways with 12-foot lanes. ⢠States must allow combination vehicles with semitrailers up to 48 feet and cannot prohibit the overall length of these combinations. ⢠States must allow trailers up to 28 feet in twin trailer combinations. ⢠States are prohibited from reducing trailer length limits in use and legal as of December 1, 1982.PL 97-424 also prohibited states from imposing certain specific length limitations: ⢠No length limitations less than 48 feet on a truck tractor-trailer combination. ⢠No length limitations less than 28 feet on any trailer. ⢠No overall length limitations. ⢠No prohibition of commercial motor vehicles operating truck tractor-trailer combinations. ⢠No prohibition on trailers 28½ feet long in a truck tractor-trailer combination if trailer was in operation on December 1, 1982, and had an overall length not exceeding 65 feet. ⢠No limit less than 45 feet on the length of any bus.Because previous legislation included many grandfathered provisions for certain overweight oroverlength vehicles, PL 97-424 allowed states to issue permits for vehicles and loads âwhich theState determines could be lawfully operated in 1956 or 1975.â The grandfathered exceptionsgranted to states appear in 23 USC 127, while the specific grandfathered rights in any staterelated to semitrailer length and to combination vehicles exceeding 80,000 pounds GVW are in23 CFR 658, Appendices B and C. Currently, 37 states and the District of Columbia have someform of exception to the 80,000-pound limit on at least some portion of their National System ofInterstate and Defense Highways (FHWA, 2015).Finally, in 1991, PL 102-240, the Intermodal Surface Transportation Efficiency Act, fixed theweight of long combination vehicles and limited their routes to those allowed by a state as ofJune 1, 1991. The law defined long combination vehicles as âany combination of a truck tractoror two or more trailers or semitrailers which operate on the National System of Interstate andDefense Highways with a GVW greater than 80,000 pounds.â The law prohibited states fromexpanding routes or removing restrictions on long combination vehicles after June 1, 1991.Following the lawâs implementation, states reported long combination vehicle size and weightrestrictions that were in place before the freeze. Additionally, states reported authorized routesfor long combination vehicles, now listed in 23 CFR 658. Currently, 23 states allow longcombination vehicles, but six of those states limit the operation of long combination vehicles toturnpike facilities (FHWA, 2015). 28
State Weight Limit Compliance with Federal LimitsBecause 23 USC 127 could lead to the withholding of federal highway money in a state that setsweight limits for travel on the National System of Interstate and Defense Highways that arehigher or lower than the federal limits, many states incorporated compliance clauses into statelaw that maintain compliance with 23 USC 127 requirements in some manner (FHWA, 2015).However, most states establish two sets of weight limits, one for state highways and another forinterstate highways, with the latter either being compliant with 23 USC 127 or otherwisetriggering a compliance clause. For example, in 2012, FHWA identified eight states(Connecticut, Hawaii, Nebraska, Nevada, New Jersey, New York, Washington, and Wyoming)in which the stateâs statutory weight limits were higher than the federal limit for interstatehighways, but the compliance clause applies the federal weight limit to the interstates, therebyoverriding the state weight limit for interstate travel (FHWA, 2015).State Permitting Processes and Weight/Size LimitsWhile harmonization efforts exist across the United States to implement more uniform practicesfor OS/OW permitting and marking/escort requirements, states issue these permits differently ordo not use the same agency. Furthermore, although weight limits for the National System ofInterstate and Defense Highways are uniform due to compliance clauses designed to maintaincompliance with 23 USC 127 and therefore prevent any loss of federal highway funding, statehighway weight limits vary widely. Consequently, even if a state harmonizes its escort, marking,or lighting requirements with another state, the permitting process and the limitations on stateroads may still vary.Additionally, county and municipal governments may require, or attempt to require, their ownlimitations on county or municipal roadways. Both Middleton et al. (2012) and Prozzi et al.(2014) found variations not just within the state but between transportation districts within thestate regarding OS/OW permit requirements and practices.A complete survey of state permitting processes and weight/size limits, as of October 1, 2012,appeared in the FHWA MAP-21 Report to Congress, Compilation of Existing State Truck Sizeand Weight Limit Laws. The FHWA Office of Freight Management and Operations maintains acontact list of state permitting offices on its webpage. The office also provided clarification onspecial permit expiration under the Coronavirus Aid, Relief, and Economic Security Act.AASHTO has a 50-state matrix of permit requirements on its OS/OW Permit Harmonizationwebpage, with additional information on those harmonization efforts at the national and regionallevel, which are discussed further in the section below.Additionally, AASHTO (2016) publishes the Guide for Maximum Dimensions and Weights ofMotor Vehicles, currently in its fifth edition. Regional state highway and transportationassociations, like WASHTO, also publish guides. In addition to recommendations for permitharmonization efforts, WASHTO identifies some of the regional variations in permittingpractices and weight/size limits.However, these guides, discussed more in the next section, focus on recommendations to thestates. There are no freely available, regularly updated U.S. or North American guides to statepermitting requirements for OS/OW vehicles and the various state limits and practices. The most 29
recent public domain survey of state permitting is an e-supplement prepared by the U.S.Government Accountability Office (GAO) in support of its 2015 report, GAO-15-236:Transportation Safety: The Federal Highway Administration Should Conduct Research toDetermine Best Practices in Oversize/Overweight Permitting (U.S. Government AccountabilityOffice, 2015). The related study found, based on the data gathered for the e-supplement and thereport, wide variations in state permitting practices. GAO recommended research anddevelopment by FHWA of best practices guidance with an emphasis on automated permittingsystems.Private-Sector SolutionsTo address the gap in publicly available information on current permitting practices, limitations,and requirements, private-sector firms provide fee-based services to trucking and shippingcompanies to assist them in routing and permit acquisition. These firms specialize in providingrouting information, providing safety and marking requirements, and identifying any travelrestrictions (like days/times of operation limitations along the route), and they provide assistancein obtaining the necessary permits.Additionally, some of these permit firms provide escort vehicles, pilot cars, route surveying, orother services. These firms may work as a network of subcontractorsâsmall companiesspecializing in specific states or regionsâor as larger firms that assist with internationalshipments into Canada and Mexico and their associated permitting processes and requirements.Additionally, several firms offer subscription-based regulatory search tools and guides toOS/OW permitting and state weight/size limits, including the Oversize Load Assistant and J.J.Keller and Associatesâ Vehicle Size and Weight GuidelinesâOnline Edition.Best Practices and Harmonization of RegulationsHarmonization efforts at a regional and national level, like the 2009 WASHTO guide, have along history. NCHRP first published a synthesis of uniformity efforts in OS/OW permits in 1988(Humphrey). Following the passage of PL 112-141 in 2012, AASHTOâs SCOHT (predecessor ofthe Subcommittee on Freight Operations) and several regional state highway and transportationorganizations engaged in efforts to harmonize OS/OW permitting between states to reduceimpediments to interstate commerce. The recommendations of these organizationsâprovided tostate officialsâencouraged the states to adopt standard procedures for escort vehicles, signage,flags, warning lights, travel restrictions related to days/hours of operation, holiday travelrestrictions, permit maximums, permit revision and extension processes, and the time a permit isvalid for a single state trip.SCOHT defined harmonization as establishing âbaseline restrictive thresholds for variouscharacteristics of an issued permitâ that allowed and encouraged states to find âappropriate, lessrestrictive, measuresâ (AASHTO, 2016). SCOHT focused on two core concepts in its efforts,with harmonization rather than uniformity as a goal: first, that states agree not to become morerestrictive in their permitting process than they were when AASHTO began its harmonizationeffort; and second, that states agree not to be more restrictive than an agreed-on base level orthreshold approved by SCOHT by âestablished voting processes.â Both of these principles camewith the caveat âwhere practicable.â 30
Unfortunately, AASHTO SCOHT members, although representing their states, could not changethe permitting regulations without action by state legislatures or through established rulemakingprocedures within their states. SCOHT recommendations asked states with permit conditionsmore restrictive than those of the SCOHT harmonization recommendations to âreview their laws,regulations, and policesâ and âconsider changing them as appropriate to reach the thresholdâ(AASHTO, 2016). However, state permit issuing offices, regulatory authorities, and legislatureshad no legal obligation to do so.Although the SCOHT efforts to harmonize markings, lighting, and escorts achieved somesuccesses as to base levels/thresholds, wide variations remain in permitting practices, permitrequirements, route planning, and size and weight limits from state to state, between statepractice and that of federally recognized tribal governments and U.S. territories, and between theU.S., Canada, and Mexico, as further studies have demonstrated.In addition to SCOHT harmonization efforts, the May 2013 Skagit River Bridge incidentâinwhich a span of the Interstate 5 bridge over the Skagit River in the state of Washington collapseddue to an oversize load striking several of the bridgeâs overhead support beamsâled to aNational Transportation Safety Board (NTSB) investigation and the previously mentionedCongressionally mandated GAO study and report, GAO-15-236: Transportation Safety: TheFederal Highway Administration Should Conduct Research to Determine Best Practices inOversize/Overweight Permitting (U.S. GAO, 2015), into how FHWA and states regulated themovement of oversize vehicles. That study recommended that FHWA develop a best practicesguide focused on automated permitting systems.FHWA contracted with Leidos and the Specialized Carriers and Rigging Association to prepare abest practices report, FHWA-HOP-17-061, Best Practices in Permitting Oversize andOverweight VehiclesâFinal Report, published in February 2018 (Schaefer & Todd, 2018). Inresponse to recommendations from the GAO report, the FHWA study included a literaturereview, an inventory of state permitting practices and systems, state case studies, and otherresearch focused on automated vehicle permitting, routing, and escort driver certification andrecommended best practices states might implement.Additionally, three other studies that examined state permitting practicesâMiddleton et al.(2012), Arora and Associates, P.C. (2014), and CPCS Transcom Limited (2016). All of thesestudies made recommendations. Middleton et al. (2012) performed a Texas DOT-funded studyfocused on OS and OW routing in Texas and included a review of technology solutions used toimprove permit issuance and auto-route generation, bridge safety assessments, and notificationof carriers to changes in route restrictions. The researchers also solicited stakeholder input,conducted a workshop and case study, and solicited feedback from industry and governmentstakeholders.Arora and Associates, P.C. (2014) performed an AASHTO/TRB-funded survey to identify statepermitting practices and requirements related to superloads (non-divisible extremely heavy orlarge dimension loads) that require special permits above the requirements for most otherOS/OW permits. Superloads require significantly more coordination and routing consideration.Each state defines such loads differently, but the process for obtaining such permits tends to bemore onerous than for other OS/OW loads (Middleton et al., 2012; Prozzi et al., 2014). 31
CPCS Transcom Limited (2016) conducted a TRB-sponsored study examining multi-state/interstate movements of OS/OW loads, both intrastate and interstate state permittingrequirements, and public costs of inefficiencies created by the various state requirements relatedto permitting practices and routing. The report made recommendations regarding state practicesto reduce such inefficiencies.Additionally, the Texas A&M Transportation Institute (TTI) conducted a literature review andhosted a one-day industry forum in 2014 to identify OW/OS research priorities in Texas. In theirreport, TTI researchers listed the following forum-developed priorities for research (Prozzi et al.,2014): ⢠Rationale and enforcement of size and weight regulations in Texas. ⢠Documentation of the restrictions on OS/OW loads. ⢠Use of innovative technology and systems to enhance enforcement. ⢠Quantification of the benefits to the Texas economy associated with OS/OW loads. ⢠Quantification of the cost of higher design standards (more resilient roads) to accommodate OS/OW loads.Harmonization of regulation with neighboring states was not a priority that emerged from thediscussion groups at this industry forum, although it was discussed. Both simplification ofregulation and harmonization of rules within Texas were also topics. In particular, the lack ofuniformity related to state, county, and municipal rules and the inconsistent enforcement acrossthe state both engendered discussion in several areas (Prozzi et al., 2014). TTI studies suggestthat harmonization and best practices efforts for OS/OW vehicle permitting may be both amacro- and micro-level issueâwhile national/regional efforts at harmonization like those ofAASHTO or SASHTO focus on interstate harmonization, some states may also benefit fromharmonization and best practices efforts at an intrastate level.Recently, AASHTOâs Subcommittee on Freight Operation sponsored a permit dataharmonization project documented in a report by Athey Creek Consultants (2022). The primaryobjective of this project was to identify opportunities to harmonize data elements and howinformation is organized and displayed on commercial vehicle special permits among states. ThePermit Data Harmonization Model Permit & Best Practices report is a resource that providesideas for agencies to consider when updating their permits to be more harmonized with otherstates. An example of their model permits is shown in Figure 2. 32
Figure 2. Example of Model Permits from Permit Data Harmonization Project (Source: Athey Creek Consultants [2022])As this NCHRP study progresses, efforts continue to develop and sign agreements implementinga wide variety of new permit harmonization updates and agreements from regional state highwaytransportation official organizations. For instance, MAASTO states have already harmonizedtheir EDLs by signing a memorandum of understanding (MOU). The purpose of this MOU is toestablish a minimum EDL permitted weight that all 10 MAASTO states can agree to and adopt.As stated in the MOU, in case of a major disaster declaration under the Stafford Act andcorresponding state declaration, this MOU creates a MAASTO region-wide EDL managementpolicy. Figure 3 shows the first page of the MAASTO agreement.The MOU emergency policy expands emergency interstate truck weights from 80,000 pounds toa permitted weight of 88,000 pounds, with no more than a 10 percent increase per axle to theextent such weight increase is practicable. This approach considers the critical and immediateneed for relief supplies, the ability and desire of the trucking industry to increase emergencyweights when possible, and the overweight permitting processes and engineering characteristicsdistinct to each state. MAASTOâs coordination with state and local governments during declaredmajor disasters ensures permitted loads can safely reach the areas in need once off the interstatesystem.The research team also learned that WASHTO, NASTO, and SASHTO are also working onagreements or projects to harmonize the emergency loads; however, there was not enoughinformation publicly available on these efforts to evaluate them at the time of the literaturereview. 33
Figure 3. Screenshot from MOU Signed by MAASTO States for Harmonizing Their EDLs 34
International Best Practices and Harmonization EffortsAt the international level, harmonization efforts are products of the national or supranationalinstitutional systems conducting them. As such, the institutional system's characteristics play animportant role in their adoption. For example, a strong central government conducts regulationdifferently from a federal system of government. Therefore, lessons drawn from internationalexamples include the caveat that their transferability to an American context may not align withthe U.S. federal system of governance, especially given the significant role played by states inregulating OS/OW loads.Woodrooffe et al. (2010) conducted an AASHTO/TRB-funded review of Canadaâs experiencewith regulating large commercial vehicles and the half-century of processes involved withharmonizing standards across Canadaâs 10 provinces. The review noted that the need forharmonization arose in the wake of Canadaâs National Highway Systemâs rapid growth in the1960s. The âsignificant and differingâ provincial regulations proved to be a detrimentaleconomic barrier to internal trade. Thus, the provinces arranged for a cooperative group to enactan MOU, thereby creating a set of minimal dimensional and weight standards for commercialvehicles to operate in all provinces.In 2007, FHWA and AASHTO sponsored a study with American Trade InitiativesâFHWA-PL-07-002, Commercial Motor Vehicle Size and Weight Enforcement in Europeâto examine andreview the procedures utilized by the European Union and its member states to enforcecommercial OS/OW laws (Honefanger et al., 2007). As part of the study, researchers examinedthe ongoing harmonization efforts of the European Union and the challenges that have arisenthrough implementation across the member states. The European Parliamentâs dual prioritizationof internal consistency within the union and individual nationsâ economic interests led to theneed to develop minimal dimensional and weight standards that would allow for frictionlesscross-union trade. These standards, codified in 1996 as European Union Council Directive96/53/EC, are a set of minimum requirements that member states are obligated to implementwith their national regulatory agencies.However, since these standards only set minimums regarding cross-border trade that memberstates must allow, individual nations can set higher national standards. The European Union hasalso made attempts to reduce economic friction and harmonize OS/OW load standards withneighboring non-member states. In 2000, the Swiss government worked with the EuropeanCommission to raise the minimum weight allowance from 28 to 40 metric tons in exchange foran increased heavy vehicle tax applied to overweight vehicles crossing the country.In 2016, AASHTO sponsored a study with CPCS Transcom Limited, NCHRP Report 830:Multi-State, Multimodal, Oversize/Overweight Transportation, to provide a brief analysis ofglobal OS/OW permitting processes. As part of that study, researchers created various casestudies of federal countries and the harmonization efforts they pursued. The researchers notedthat in Mexico, OS/OW permitting and regulation are primarily handled by the Secretariat ofCommunications and Transportation and not the individual Mexican states because the federalgovernment maintains more than half of Mexicoâs paved road network. This uniquecirc*mstance allowed Mexico to maintain a uniform set of rules on the nationâs main commercialarteries, reducing friction and barriers to economic activity. 35
Overweight Relief During Disasters and Emergencies in the UnitedStates: Initial AnalysisMethodThe project team examined 58 emergency declarations posted to the CVSA EmergencyDeclarations Portal between March 6, 2020, and October 28, 2022. The team included only thosedeclarations occurring within the United States and its territories and those affecting OS/OWpermitting.A project team member then assigned data points to each declaration identifying the state orfederal official or agency issuing the declaration, the emergency or disaster type, the order type(executive order, declaration, proclamation, etc.), the regulations affected at the state and federallevel, the type of relief granted, the authority used (state and/or federal law), the specific legalauthority cited for the declaration, and a variable identifying declarations referencing both OWspecial permitting and FMCSR relief. The project team then analyzed the resulting data set todetermine commonalities and similarities.ResultsEmergency or Disaster TypeThe largest share of emergency declarations posted to the CVSA portal related to natural disasterdeclarations (28 out of 58), followed by COVID-19 (24 out of 58), as shown in Figure 4. Typesof natural disasters cited included hurricanes (10), wildfires (five), snowstorms (five), drought(five), and flooding (three). One state declared an emergency due to untimely harvest, anotherdue to fuel shortages, and four states issued declarations related to the Colonial Pipelineshutdown caused by a cyberattack. Figure 4. Emergency or Disaster Type in CVSA Emergency Declaration Portal 36
Federal and State DeclarationsUnder the authority granted FMCSA by 49 CFR 390.23, FMCSA issued 10 FMCSRemergency/disaster relief orders: three for hurricanes, three for wildfires, one for a fuel shortage,one for a drought, and one for the Colonial Pipeline shutdown/cyberattack. Five of the 10 relieforders applied to a single state, while the other five covered multiple states.The remaining 48 emergency/disaster declarations in the CVSA portal occurred at a state level.Thirty-one came from governors, with the remaining 17 issued by state DOTs.Declaration NamingDue to the varied structure of state constitutions and laws, the form of each of the 58 declarationsposted to the CVSA portal likewise varied in what the state called the declaration (see Table 1).The majority involved executive orders by governors (32). The second most common form was awaiver, with six instances. Of the waivers, the governor of Virginia issued one, the VirginiaDepartment of Transportation issued two, and the Delaware, Nevada, and Maryland DOTsissued one each. Also noteworthy, FMCSA issued all five extensions, three for wildfires and oneeach for flooding and drought. The Pennsylvania Secretary of Transportation issued bothexemptions during COVID-19, and the Oregon DOT issued the relief. Table 1. Names of Emergency Declarations Declaration Name Count Executive Order 32 Waiver 6 Extension 5 Proclamation 5 Emergency Declaration 5 Emergency Order 2 Exemption 2 Relief 1 Total 58Declaration TypeStates may issue declarations that establish OW special permitting under a presidential StaffordAct declaration or special permitting of OW vehicles on state roads using state authorities only.Additionally, states may issue declarations providing relief from elements of the FMCSR underFMCSA authorities. Many states combine their FMCSR relief and OW special permitting into asingle declaration. The results of the analysis of declarations in the CVSA portal appear in Table2. 37
Table 2. Declaration Types Declaration Type Count FMCSR and OS Divisible Load 34 (Federal Authority) FMCSR Only 10 OW Divisible Load Only 6 (Federal Authority) OS/OW Only 8 (State Authority) Total 58The six OW divisible load-only declarations came from four states. One came from Iowa for anuntimely harvest, dated October 28, 2022. The other states were South Carolina, Pennsylvania,and Virginia, all of which made a declaration related to COVID-19. The eight OW DivisibleLoad (State Authority) declarations varied and came from seven states (see Table 3). Table 3. State-Only OS/OW Declarations State Disaster Date Florida Hurricane 9/24/2022 Louisiana Colonial Pipeline Shutdown 5/12/2021 Louisiana Flooding 3/10/2021 Alabama COVID-19 3/19/2020 Florida Hurricane 9/14/2020 Nevada Hurricane 8/26/2020 Delaware COVID-19 3/15/2020 Colorado COVID-19 3/20/2020AuthorityState declarations cited a wide variety of authorities, both federal and state. States implementingOS/OW special permitting under 23 USC 127 all cited presidential Stafford Act declarations,though a few also cited the HHS public health emergency declaration for COVID-relateddeclarations. Declarations involving relief from elements of the FMCSR cited the authoritygranted by 49 CFR 390.23. States also cited relevant state statutes in some cases when citingfederal authorities, while state OS/OW declarations relied exclusively on state authorities.States AffectedTable 4 tallies state and FMCSA-issued emergency declarations in the CVSA portal during theperiod covered by this examination. Virginia issued significantly more declarations than otherstates. 38
Table 4. Number of CVSA Emergency Declarations No. of State Declarations FMCSA 10 Virginia 8 Oklahoma 5 South Carolina 4 Iowa 3 Montana 3 Florida 2 Louisiana 2 Minnesota 2 New York 2 North Dakota 2 Oregon 2 Pennsylvania 2 Alabama 1 Arkansas 1 Colorado 1 Delaware 1 Georgia 1 Kansas 1 Maryland 1 Nevada 1 North Carolina 1 South Dakota 1 Tennessee 1 Total 58 39
Summary and ConclusionsThe following conclusions emerged based on the preceding review of literature and CVSAdeclaration analysis: ⢠Emergency Special Permitting and FMCSR Relief Process: The special permitting process for overweight (or oversize) vehicles during emergencies and disasters differs from the FMCSR relief process, though both can and often are implemented in a single declaration by a state. ⢠Requirement of a Presidential Stafford Act Disaster Declaration for Special Permitting: The key difference between special permits and FMCSR relief, aside from the fact that they depend on separate and distinct parts of the USC and the U.S. CFR is that overweight special permitting always requires a presidential Stafford Act disaster declaration. ⢠Special Permitting versus FMCSR Waiver: Special permitting for overweight vehicles (or oversize vehicles) during an emergencyâwhile it may alter, reduce, or otherwise circumvent the normal permitting processâdoes not provide full relief from that process, whereas FMCSR relief is just thatâit waives the requirements of the FMCSR specified in the declaration and allowed under the USC. ⢠Relief Initiation: FMCSA can initiate FMCSR relief in a state or states, whereas only a state can implement special permitting of oversize and overweight vehicles because FHWA possesses no authority to do so. ⢠Type of Highways Considered for Regulatory Relief: Special permitting can also apply differently depending on the disaster. States implementing special permitting in a disaster can, if there is a presidential Stafford Act disaster declaration, implement special permitting on the National System of Interstate and Defense Highways and on state roads, or they may issue a declaration that applies to only state roads and not to the National System of Interstate and Defense Highways, if authorized to do so by state statutes, absent a presidential Stafford Act disaster declaration.The next chapter describes the stakeholder outreach the researchers performed to (a) compilebest practices, procedures, and decision processes for increasing weight limits duringemergencies used by state and local transportation agencies; (b) determine the rationale behindthese processes, practices, and decision processes; and (c) understand and document ongoing andbest practices for harmonization with neighboring jurisdictions. 40
