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Cover_w_new_logo_D31

Wisconsin

Administrative

Register

No. 528

Publication Date: December 31, 1999

Effective Date: January 1, 2000

Revisor of Statutes Bureau

Suite 800, 131 West Wilson Street

Madison, Wisconsin 53703-3233

Table_D31

T a b l e o f C o n t e n t s

Emergency Rules Now In Effect.	Pages 5 to 10.
Agriculture, Trade and Consumer Protection:	Rules relating to security of dairy plant payments to milk producers.
Commerce:	PECFA Interagency Responsibilities, Ch. Comm 46 Rules relating to Petroleum Environmental Cleanup Fund interagency responsibilities.
Commerce:	Resources for Communities, etc., Chs. Comm 105-128 Rules relating to certified capital companies.
Crime Victims Rights Board:	Rules relating to review of allegations of crime victims rights violations.
Health & Family Services:	Management, etc., Chs. HFS 1-- Rule relating to caregiver background checks.
Health & Family Services:	Community Services, Chs. HFS 30- Rules relating to the adoption assistance program.
Health & Family Services:	Medical Assistance, Chs. HFS 100-108 Rules relating to operation of the BadgerCare health insurance program.
Health & Family Services:	Health, Chs. HFS 110- Rules relating to the Health Insurance Risk-Sharing Plan (HIRSP).
Higher Educational Aids Board:	Rules relating to the Minority Teacher Loan Program.
Natural Resources:	Environmental Protection-Water Regulation, Chs. NR 300- Rules relating to determination of navigability in farm ditches.
Natural Resources:	Environmental Protection-Investigation & Remediation, Chs. NR 700-- Rules relating to sites contaminated with petroleum products from petroleum storage tanks.
Revenue:	Rules relating to assessment of agricultural property.
Transportation:	Rules adopted revising ch. Trans 4, relating to evaluating bids solicited for transit service in a competitive process. [FIRST APPEARANCE]
Scope Statements.	Pages 11 to 13.
Agriculture, Trade and Consumer Protection:	Ch. ATCP 10 - Relating to financial assistance for Johne's disease testing.
Agriculture, Trade and Consumer Protection:	Chs. ATCP 10, 11 and 12 - Relating to animal health, animal import and livestock markets, dealers and truckers.
Health and Family Services (Health, Chs. HFS 110--):	Ch. HFS 144 - Relating to immunization of students.
Natural Resources (Environ. Protection-General, Chs. NR 100--):	Ch. NR 190 - Relating to lake management planning grants.
Revenue:	S. Tax 2.82 - Relating to nexus.
Transportation:	Ch. Trans 4 - Relating to the administrative policies and procedures for implementing the State Urban Mass Transit Operating Assistance Program.
Veterans Affairs:	SS. VA 2.01 (2) (b) and 12.02 and ch. VA 15 - Relating to the health care aid grant and personal loan programs and tribal grant agreements.
Workforce Development (Economic Support, Chs. DWD 11-59):	Chs. DWD 12 and 56 - Relating to W-2 financial eligibility and to child care eligibility.
Notices of Submittal of Proposed Rules to Wisconsin Legislative Council Rules Clearinghouse.	Page 14.
Pharmacy Examining Board:	S. Phar 7.09 - Relating to the automated dispensing of prescription drugs.
Workforce Development:	Ch. DWD 12 - Relating to two-parent families under Wisconsin Works.
Workforce Development:	Chs. DWD 100 to 149 - Relating to a limited waiver of the work search requirement, ability to work and availability for work, and various minor changes relating to unemployment insurance.
Workforce Development:	Chs. DWD 290 and 294 - Relating to prevailing wages.
Notices of Hearings or of Proposed Rules.	Pages 15 to 20.
Pharmacy Examining Board:	Hearing to consider s. Phar 7.09, relating to the automated dispensing of prescription drugs.
Transportation:	Hearing to consider revision to ch. Trans 4, relating to requiring use of a fully-allocated cost methodology when evaluating bids solicited for transit service.
Veterans Affairs:	Hearing to consider a rule relating to Fannie Mae Program underwriting guidelines.
Workforce Development:	Economic Support, Chs. DWD 11-59 Hearing to consider revision of ch. DWD 12, relating to two-parent families under Wisconsin Works.
Workforce Development:	Unemployment Compensation, Chs. DWD 100-150 Hearings to consider revision to chs. DWD 100 to 149, relating to a limited waiver of work search requirements, ability to work and availability to work.
Workforce Development:	Prevailing Wage Rates, Chs. DWD 290-294 Hearing to consider revision to chs. DWD 290 and 294, relating to prevailing wages.
Notice of Submission of Proposed Rules to the Presiding Officer of Each House of the Legislature, Under S. 227.19, Stats.	Page 21.
Health & Family Services:	(CR 99-56) - Ch. HFS 145
Pharmacy Examining Board:	(CR 98-76) - SS. Phar 1.01 and 1.02 and ch. Phar 15
Public Service Commission:	(CR 98-27) - Ch. PSC 113
Public Service Commission:	(CR 99-19) - Ch. PSC 160
Administrative Rules Filed with the Revisor of Statutes Bureau.	Page 22.
Corrections:	(CR 97-67) - Ch. DOC 309
Natural Resources:	(CR 97-136) - SS. NR 132.085 and 132.09
Rules Published in this Wis. Adm. Register.	Pages 23 to 24.
Agriculture, Trade and Consumer Protection:	(CR 98-158) - S. ATCP 75.015 (7) (c)
Agriculture, Trade and Consumer Protection:	(CR 99-78) - S. ATCP 60.19 (3) and (4)
Agriculture, Trade and Consumer Protection:	(CR 99-116) - Ch. ATCP 77
Employment Relations, Dept. of:	(CR 99-110) - Ch. ER 18 and ss. ER 1.02, 29.03 and 29.04
Employment Relations--Merit Recruitment and Selection:	(CR 99-111) - SS. ER-MRS 1.02, 11.03, 16.025, 16.035, 16.04, 22.11 and 34.08
Financial Institutions--Securities:	(CR 99-121) - Chs. DFI-Sec 1 to 5 and ss. DFI-Sec 7.06 and 9.01
Professional Geologists, Hydrologists and Soil Scientists Examining Board:	(CR 99-88) - Chs. GHSS 1 to 5
Health and Family Services:	(CR 99-81) - SS. HFS 115.04 and 115.06
Health and Family Services:	(CR 99-112) - S. HFS 105.39 (4) (b) 3.
Law Enforcement Standards Board:	(CR 99-93) - Ch. LES 4
Medical Examining Board:	(CR 99-1) - Ch. Med 8
Medical Examining Board:	(CR 99-98) - Chs. Med 6, 13 and 21 and ss. Med 10.02 and 17.02
Natural Resources:	(CR 98-162) - S. NR 410.03
Natural Resources:	(CR 99-23) - Ch. NR 20 and ss. NR 21.04, 23.05 and 26.26
Natural Resources:	(CR 99-47) - Ch. NR 6, 8, 50 and 64 and s. NR 60.09
Natural Resources:	(CR 99-82) - S. NR 45.10
Natural Resources:	(CR 99-83) - Chs. NR 40, 41 and 45
Natural Resources:	(CR 99-97) - SS. NR 10.01, 10.06, 10.12 and 10.31
Pharmacy Examining Board:	(CR 98-187) - S. Phar 7.10
Transportation:	(CR 98-168) - Ch. Trans 102
Transportation:	(CR 99-91) - SS. Trans 213.02 and 213.03
Transportation:	(CR 99-107) - Ch. Trans 134
Transportation:	(CR 99-119) - SS. Trans 276.07 and 276.09
Sections Affected by Rule Revisions and Corrections.	Pages 25 to 28.
REVISIONS
Agriculture, Trade and Consumer Protection:	Chs. ATCP 60, 75 and 77
Employment Relations:	Chs. ER 1, 18 and 29
Employment Relations--Merit Recruitment and Selection:	Chs. ER-MRS 1, 11, 16, 22 and 34
Financial Institutions--Securities:	Chs. DFI-Sec 1 to 5, 7 and 9
Professional Geologists, Hydrologists and Soil Scientists Examining Board:	Chs. GHSS 1 to 5
Health and Family Services (Medical Assistance, Chs. HFS 100--):	Ch. HFS 105
Health and Family Services (Health, Chs. HFS 110--):	Ch. HFS 115
Law Enforcement Standards Board:	Ch. LES 4
Medical Examining Board:	Chs. Med 6, 8, 10, 13, 17 and 21
Natural Resources (Fish, Game, etc., Chs. NR 1--):	Chs. NR 6, 8, 10, 20, 21, 23, 26, 40, 41, 45, 50 and 64
Natural Resources (Air Pollution Control, Ch. NR 400--):	Ch. NR 410
Pharmacy Examining Board:	Ch. Phar 7
Transportation:	Chs. Trans 102, 134, 213 and 276
EDITORIAL CORRECTIONS
Employment Relations:	Chs. ER 1 and 18
Employment Relations--Merit Recruitment and Selection:	Chs. ER-MRS 6 and 16
Health and Family Services (Community Services, Chs. HFS 30--):	Chs. HFS 42, 57, 59, 60, 86 and 88
Health and Family Services (Medical Assistance, Chs. HFS 100--):	Ch. HFS 105
Health and Family Services (Health, Chs. HFS 110--):	Ch. HFS 155
Law Enforcement Standards Board:	Ch. LES 1
Medical Examining Board:	Chs. Med 1, 3, 4, 11 and 20
Natural Resources (Fish, Game, etc., Chs. NR 1--):	Chs. NR 6, 8, 45, 50 and 64
ERRATA
Employe Trust Funds:	Ch. ETF 50
Public Service Commission:	Ch. PSC 166
Final Regulatory Flexibility Analyses.	Pages 29 to 33.
1. Agriculture, Trade and Consumer Protection:	(CR 98-158) - S. ATCP 75.015
2. Agriculture, Trade and Consumer Protection:	(CR 99-78) - S. ATCP 60.19
3. Agriculture, Trade and Consumer Protection:	(CR 99-116) - Ch. ATCP 77
4. Employment Relations, Dept. of:	(CR 99-110) - Chs. ER 1, 18 and 29
5. Employment Relations--Merit Recruitment and Selection:	(CR 99-111) - Chs. ER-MRS 1, 11, 16, 22 and 34
6. Financial Institutions--Securities:	(CR 99-121) - Chs. DFI-Sec 1 to 5 and ss. DFI-Sec 7.06 and 9.01
7. Professional Geologists, Hydrologists and Soil Scientists Examining Board:	(CR 99-88) - Chs. GHSS 1 to 5
8. Health and Family Services:	(CR 99-81) - Ch. HFS 115
9. Health and Family Services:	(CR 99-112) - S. HFS 105.39 (4) (b) 3.
10. Law Enforcement Standards Board:	(CR 99-93) - Ch. LES 4
11. Medical Examining Board:	(CR 99-1) - Ch. Med 8
12. Medical Examining Board:	(CR 99-98) - Chs. Med 6, 10, 13, 17 and 21
13. Natural Resources:	(CR 98-162) - S. NR 410.03
14. Natural Resources:	(CR 99-23) - Ch. NR 20 and ss. NR 21.04, 23.05 and 26.26
15. Natural Resources:	(CR 99-47) - Ch. NR 6, 8, 50 and 64 and s. NR 60.09
16. Natural Resources:	(CR 99-82) - Ch. NR 45
17. Natural Resources:	(CR 99-83) - Chs. NR 40, 41 and 45
18. Natural Resources:	(CR 99-97) - SS. NR 10.01, 10.06, 10.12 and 10.31
19. Pharmacy Examining Board:	(CR 98-187) - S. Phar 7.10
20. Transportation:	(CR 98-168) - Ch. Trans 102
21. Transportation:	(CR 99-91) - Ch. Trans 213
22. Transportation:	(CR 99-107) - Ch. Trans 134
23. Transportation:	(CR 99-119) - Ch. Trans 276
Executive Order.	Page 34.
Executive Order No. 385:	Relating to the Creation of the Governor's Council in Workforce Investment.
Notice of Nonacquiescence.	Page 35.
Revenue:	Tax Appeals Commission Milwaukee Safeguard Insurance Co. and Milwaukee Guardian Insurance, Inc., v. Wisconsin Department of Revenue.

emer528

E m e r g e n c y R u l e s N o w I n E f f e c t

Under s. 227.24, Stats., state agencies may promulgate rules without complying with the usual rule-making procedures. Using this special procedure to issue emergency rules, an agency must find that either the preservation of the public peace, health, safety or welfare necessitates its action in bypassing normal rule-making procedures.

Emergency rules are published in the official state newspaper, which is currently the Wisconsin State Journal. Emergency rules are in effect for 150 days and can be extended up to an additional 120 days with no single extension to exceed 60 days.

Extension of the effective period of an emergency rule is granted at the discretion of the Joint Committee for Review of Administrative Rules under s. 227.24 (2), Stats.

Notice of all emergency rules which are in effect must be printed in the Wisconsin Administrative Register. This notice will contain a brief description of the emergency rule, the agency finding of emergency, date of publication, the effective and expiration dates, any extension of the effective period of the emergency rule and information regarding public hearings on the emergency rule.

EMERGENCY RULES NOW IN EFFECT

Agriculture, Trade & Consumer Protection

Rules adopted revising s. ATCP 100.45, relating to security of dairy plant payments to milk producers.

Finding of Emergency

(1) Section 100.06, Stats., is designed to provide “reasonable assurance” that dairy farmers will be paid for the milk they produce. Under ss. 97.20(2)(d)2. and l00.06, Stats., a dairy plant must, as a condition to licensing, comply with applicable security requirements under s. 100.06, Stats., and department rules under ch. ATCP 100, Wis. Adm. Code. Since dairy plant licenses expire on April 30 annually, dairy plants must comply with applicable security requirements in order to qualify for license renewal on May 1 of each year.

(2) Under s. 100.06, Stats., and ch. ATCP 100, a dairy plant operator who purchases milk from producers must do one of the following:

(a) File with the department of agriculture, trade and consumer protection (“department”) audited financial statements which show that the operator meets minimum financial standards established by s. 100.06, Stats.

(b) File security with the department in an amount equal to at least 75% of the operator's ”maximum liability to producers,” as calculated under s. ATCP 100.45(5).

(c) Enter into a dairy plant trusteeship under ch. ATCP 100, Subch. V.

(3) Under s. ATCP 100.45(5), a dairy plant operator's “maximum liability to producers” is based on the plant operator's largest monthly purchase of milk during the preceding license year. Milk prices hit all time record highs in 1998, dramatically increasing monthly dairy plant payrolls. Security requirements for the 1999 license year are currently based on these inflated 1998 monthly payrolls, even though 1999 monthly payrolls have dropped dramatically in response to price changes.

(4) Since December 1998, the average market price for raw milk has fallen by approximately 40%. Dairy economists expect BFP average prices to remain at least 12% to 16.2% below last year's average during 1999. Because of the dramatic decline in milk prices, dairy plants have smaller producer payroll obligations than they had in 1998.

(5) Prices received by Wisconsin dairy plants for processed dairy products have also fallen dramatically since December. This has created serious financial hardships for some dairy plants.

(6) Current security requirements, based on 1998 producer prices and payrolls, are excessive in relation to current payroll obligations and impose an added financial burden on dairy plants. Current security requirements under s. ATCP 100.45(5), based on last year's prices, are at least 31 to 48% higher than they would be if calculated at current prices.

(7) Because of the dramatic decline in dairy prices, some dairy plant operators are required to file large amounts of additional security, often amounting to millions of dollars. This is a major expense for affected operators. Operators may find it difficult, financially, to obtain and file the required security. If a dairy plant is unable to file the required security in connection with the May 1, 1999 license renewal, the department will forced to take action against the dairy plant's license. This could result in the forced closing of some unsecured dairy plants. The forced closing of an unsecured plant may, in turn, result in serious financial losses to producer patrons.

(8) By requiring excessive security based on last year's prices, current rules are making it unnecessarily difficult and expensive for dairy plants to obtain and file security. This could contribute to the financial failure of some dairy plants, or to the forced closing of some unsecured plants. Dairy plant financial failures or closings, if they occur, may cause serious and widespread financial injury to milk producers in this state. This constitutes a serious and imminent threat to the public welfare.

(9) In order to reduce the risk of dairy plant financial failures or forced closings, rule amendments are urgently needed to adjust dairy plant security requirements to appropriate levels based on current milk prices. The rule amendments will relieve financially stressed dairy plants from unnecessary financial burdens and will make it easier for those dairy plants to file security with the department. That, in turn, will reduce the risk of dairy plant financial failures, or the forced closing of unsecured plants, which may adversely affect milk producers.

(10) Rule amendments, to be effective, must be promulgated prior to the dairy plant license year beginning May 1, 1999. That is not possible under normal rulemaking procedures. Therefore, the following emergency rule is needed to protect the public welfare.

(11) Should milk prices rise beyond the levels currently anticipated for the license year beginning May 1, 1999, so that security filed under this emergency rule is less than 75% of a dairy plant operator's current monthly producer payroll, the operator is required to notify the department of that fact under s. 100.06, Stats., and s. ATCP 100.20(3). The department may demand additional security at that time.