Rule-making notices
Notice of Hearing
Administration
NOTICE IS HEREBY GIVEN that pursuant to ss.
16.004 (1),
16.969 (2) and
227.11 (2) (a), Stats., and interpreting s.
16.969, Stats., the Department of Administration will hold a public hearing to consider the creation of Chapter
Adm 46, Wis. Adm. Code, relating to High-Voltage Transmission Line Fees.
Hearing Date, Time and Location
Date: Monday, July 30, 2001
Time: 1:00 p.m.
Location: Room 136
Administration Building
101 East Wilson Street, 1st Floor
Madison, WI 53702
The hearing is being held in an accessible facility. Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are also urged to submit facts, opinions and arguments in writing as well. Written comments from persons unable to attend the public hearing, or who wish to supplement testimony offered at the hearings, should be directed to: Donna Sorenson, Department of Administration, P.O. Box 7864, Madison, WI 53707-7864. Written comments must be received by August 10, 2001, to be included in the record of rule-making proceedings.
Analysis prepared by the Department of Administration
Statute interpreted: s.
16.969
Under
1999 Wisconsin Act 9, the Legislature required persons receiving a Certificate of Public Convenience and Necessity from the Public Service Commission for a high voltage transmission line designed for operation at a nominal voltage of 345 kilovolts or more, to pay to the Department of Administration an annual impact fee and a one time environmental impact fee. The Department of Administration is required to develop rules to collect those fees based on a statutory formula, and distribute them to the cities, towns, villages or counties as identified by the Public Service Commission, through which the high voltage transmission lines are routed. The distribution is allocated by the Public Service Commission according to the amount of investment associated with the high voltage transmission line to each such city, town, village and county. The rule will establish payment schedules and procedures as well as the means for distributing the fees collected to the appropriate county, town village or city.
Text of Rule
SECTION 1: Adm 46 is created to read.
High-Voltage Transmission Line Fee
Adm 46.01 Authority. Sections
16.004 (1), and
16.969 (2), Stats., authorize the department to promulgate rules for payment of annual and one-time environmental impact fees by persons issued a certificate for construction of high-voltage transmission lines.
Adm 46.02 Purpose. The purpose of this chapter is to establish a process for billing, collecting and distributing annual and one-time environmental impact fees to be paid to the department by persons issued a certificate by the commission for the construction of high voltage transmission lines.
Adm 46.03 Definitions. In this chapter:
(1) “Certificate" means a certificate of public convenience and necessity issued under
s.
196.491 (3) (a) Stats.
(2) “Commission" means the public service commission.
(3) “Department" means the department of administration.
(4) “Eligible municipality" means a county, town, village or city through which a high-voltage transmission line is routed, as identified by the commission under s.196.491 (3) (gm), Stats.
(5) “High-voltage transmission line" has the meaning given in s.
16.969 (1) (b) Stats.
(6) “Person" includes all individuals, partnerships, associations, limited liability companies and bodies politic or corporate.
Adm 46.04 Annual impact fee. (1)
Assessment. (a) Within 60 days of receipt from the commission of the determination of the cost of construction for a high-voltage transmission line, identification of eligible municipalities, and allocation of the associated amount of investment, as required by s.
196.491 (3) (gm), Stats., the department shall invoice the annual impact fee to the person issued a certificate. The amount invoiced shall be equal to 0.3 % of the cost of the high-voltage transmission line as determined by the commission under s.
196.491 (3) (gm), Stats. The department shall prorate the annual impact fee in the initial year of assessment based upon the proportion of the year remaining after the date the certificate is issued.
(b) The department shall adjust any subsequent annual impact fees as necessary upon receipt from the commission of adjusted costs of construction after completion of the construction of a high-voltage transmission line.
(2) Initial year invoice and payment. In the initial year of assessment, the department shall invoice the person issued a certificate no more than 60 days after the commission transmits the required information to the department under sub. (1) (a). Payment of the fee in the initial year of assessment shall be due 45 days after the date the invoice was mailed by the department.
(3)
Subsequent year invoice and payment. On or before March 1 in each calendar year after the initial year of assessment, the department shall invoice a person issued a certificate in an amount equal to 0.3 % of the cost of the high-voltage transmission line as determined by the commission under s.
196.491 (3) (gm), Stats. Payment of the fee in subsequent years shall be due on or before May 1 of each year.
Adm 46.05 One-time environmental impact fee. A person issued a certificate shall pay a one-time environmental impact fee in the amount of 5 % of the cost of a high-voltage transmission line, as determined by the commission under s.
196.491 (3) (gm), Stats. The department shall invoice this fee no more than 60 days after the commission transmits the required information to the department under s.
Adm 46.04. Payment of the fee shall be due 60 days after receipt of the invoice.
Adm 46.06 Distribution of fees. (1)
Annual impact fees. No more than 60 days after receipt of the fee under s.
Adm 46.04, the department shall distribute the fee to each town, village and city that is an eligible municipality in proportion to the amount of investment allocated to each eligible municipality by the commission under s.
196.491 (3) (gm), Stats.
(2)
One-time environmental impact fee. No more than 60 days after receipt of the fee under s.
Adm 46.05, the department shall distribute 50 % of the fee to each county that is an eligible municipality, and 50% of the fee to each town, village and city that is an eligible municipality, in proportion to the amount of investment allocated to each by the commission under s.
196.491 (3) (gm) Stats.
Adm 46.07 Late payments. Annual impact fee payments received by the department more than 45 days after the date the invoice is mailed in the initial year of assessment, or after May 1 in subsequent years, shall be assessed interest at a rate, and in the same manner, as required by the commission for customer deposits for residential service as specified in s.
PSC 113.0402 (9) (b).
Initial Regulatory Flexibility Analysis
Pursuant to s.
227.114, Stats., the rule herein is not expected to negatively impact on small businesses.
Fiscal Estimate
Under Adm 46, the Department of Administration (DOA) is responsible for billing, collecting and distributing annual and one-time environmental impact fees paid by persons issued a certificate by the Public Service Commission for the construction of high voltage transmission lines.
The annual cost to DOA depends on the number of new transmission lines each fiscal year and the number of communities those lines run through. DOA must process one invoice per transmission line per year and one compensation check per affected community per year. DOA estimates that there will be one new transmission line every three years and the number of communities affected will vary from one to fifteen or more per line. Although it is not possible to develop a concrete fiscal impact, DOA will experience additional work and, therefore, additional cost.
Contact Person
Donna Sorenson
Department of Administration
101 E. Wilson St., 10th Floor
P.O. Box 7864
Madison, WI 53707-7864
(608) 266-2887
Notice of Hearing
Agriculture, Trade and Consumer Protection
The State of Wisconsin Department of Agriculture, Trade and Consumer Protection announces that it will hold a public hearing on a proposed rule to amend ch.
ATCP 21, and to clarify statutory references in ch.
ATCP 29, Wis. Adm. Code, related to plant inspection and pest control. The department will hold one hearing at the time and place shown below. The department invites the public to attend the hearing and comment on the proposed rule. Following the public hearing, the hearing record will remain open until August 24, 2001 for additional written comments.
You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708-8911, or by calling (608) 224-4574. Copies will also be available at the hearing.
Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by August 7, 2001 by writing to Paula Noel, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708, (608) 224-4574. Alternatively, you may contact the Department TDD at (608) 224-5058. Handicap access is available at the hearing.
Hearing Date, Time and Location
Tuesday, August 21, 2001 - 1:00 until 4:00 p.m.
Dept. of Agriculture, Trade and Consumer Protection
Board Room
2811 Agriculture Drive
Madison, WI 53704
Handicapped accessible
Analysis prepared by the Department of Agriculture, Trade and Consumer Protection
This rule repeals current import controls designed to prevent the spread of Japanese beetles into this state. Despite the current import controls, Wisconsin is now infested with Japanese beetle. The current import controls therefore serve no purpose, and may unnecessarily impede interstate commerce. This rule also updates scientific terminology and statutory references in current rules.
Background
Japanese Beetle; Repeal of Import Controls
The Department of Agriculture, Trade and Consumer Protection (DATCP) administers plant pest control rules under ch.
ATCP 21, Wis. Adm. Code. Current rules include import controls designed to prevent the spread of Japanese beetles into Wisconsin. Persons who import certain plants, soil and other materials from areas infested with Japanese beetles must have those materials inspected and certified by a pest control official in the state or province of origin. The inspector must certify that the import shipment is free of Japanese beetle. The importer must pay for the inspection and certification.
Despite these import controls, the Japanese beetle has now infested Wisconsin and over half of all U.S. states. Because Wisconsin is now infested, its current import controls may serve no useful purpose and may unnecessarily impede interstate commerce. Wisconsin's current import restrictions are not consistent with the U.S. Domestic Japanese Beetle Harmonization Plan adopted by the National Plant Board. That plan recommends regulation of imports to states that are not yet infested, but does not recommend regulation of imports to states (like Wisconsin) that are already infested.
Taxonomic Name Change
DATCP currently regulates honeybee shipments, under ch.
ATCP 21, Wis. Adm. Code, to prevent the spread of honeybee pests in this state. Two of these pests have undergone taxonomic name changes.
State Pest Control Programs
Current DATCP rules under ch.
ATCP 29, Wis. Adm. Code, regulate the use of pesticides in this state. DATCP and its agents are currently exempt from these rules when engaged in state pest control programs under s.
94.02, Stats. or ch.
ATCP 21, Wis. Adm. Code.
Rule Contents
Japanese Beetle; Repeal of Import Controls
Consistent with the national harmonization plan, this rule repeals current Japanese beetle inspection and certification requirements for materials imported into Wisconsin. This repeal will not affect the natural spread of the Japanese beetle in Wisconsin. DATCP will continue to inspect and certify export shipments from Wisconsin to non-infested states that require such inspection and certification.
Taxonomic Name Change
The International Committee on Systematic Bacteriology (1993) has changed the scientific name of the pathogen, American foulbrood. The scientific journal, Experimental and Applied Acarology (2000), has changed the scientific name of the Varroa mite. This rule updates those pests names. The name changes will not change the regulation of honeybee shipments.
State Pest Control Programs
This rule clarifies in ATCP 29, Wis. Adm. Code, that DATCP and its agents are exempt when engaged in state pest control programs under s.
94.01, Stats.
Fiscal Estimate
This rule will have no fiscal impact on the department or other units of government. These rule changes eliminate the current Japanese beetle import restrictions. Wisconsin has become infested despite the import restrictions. Therefore, the rule no longer serves a useful purpose. The department currently inspects and certifies Wisconsin nurseries in infested areas, to facilitate export of items that may transport Japanese beetle. This practice of certification to permit Wisconsin nurseries to export to uninfected states will continue. There are no additional costs to local government.
Initial Regulatory Flexibility Analysis
Plant Inspection and Pest Control
The Department of Agriculture, Trade and Consumer Protection currently regulates the import of plants, soil and other materials for the presence of Japanese beetle under ch.
94, Stats. and s.
ATCP 21.11, Wis. Adm. Code. Despite these import controls, Wisconsin is now infested with Japanese beetle, making continued import control meaningless. Under the present rule, the costs for inspection and certification are born by the out-of-state business. In an unknown number of cases, the costs of these controls may have been passed through to nurseries in Wisconsin, most of which are small businesses.
The proposed rule changes repeal the import controls on Japanese beetle and will have no impact on nurseries in Wisconsin except as far as they will no longer be subject to any pass-through on inspection and certification costs. The repeal of the import controls on Japanese beetle have no reporting, recordkeeping or procedural impacts on the conduct of the Wisconsin nursery businesses.
Taxonomic Name Change and State Pest Control Programs
The proposed changes to scientific names of two honeybee pests and the clarification of the department's exemptions from its own rules on pesticide applications in particular situations will have no impact on small businesses in Wisconsin.
Small Businesses Affected by this Rule
This rule will have little or no effect on nurseries in Wisconsin, most of which are small businesses. Under current rules, out-of-state businesses shipping into Wisconsin have incurred costs for Japanese beetle inspection and certification. This rule eliminates those costs. To the extent that out-of state importers passed on the costs to nurseries receiving import shipments in Wisconsin, this rule will decrease costs to Wisconsin nurseries.
Notice of Hearing
Controlled Substances Board
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Controlled Substances Board in ss.
961.11 (1) and
(2),
961.15,
961.17 and
961.19, Stats., and interpreting s. ss.
961.16,
961.18 and
961.20, Stats., the Controlled Substances Board will hold a public hearing at the time and place indicated below to consider an order to create s.
CSB 2.26, relating to the scheduling of Dihydroetorphine under ch.
961, Stats., the Uniform Controlled Substances Act.
Hearing Date, Time and Location
Date: August 1, 2001
Time: 9:30 a.m.
Location: 1400 East Washington Avenue
179A
Madison, Wisconsin
Appearances at the Hearing
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to the Department of Regulation and Licensing, Office of Administrative Rules, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by August 15, 2001, to be included in the record of rule-making proceedings.
Analysis prepared by the Department of Regulation and Licensing
By final rule of the Drug Enforcement Administration (DEA), adopted effective November 17, 2000, Dihydroetorphine was classified as a schedule II controlled substance under the federal Controlled Substances Act (CSA). Dihydroetorphine has not been so scheduled under the Wisconsin Controlled Substances Act in Chapter
961, Stats. The objective of the rules is to bring the treatment of these drugs into conformity with that at the federal level.
Drugs that are classified as “controlled substances" under federal and state laws are subject to higher civil and criminal penalties for their illicit possession, distribution and use. Health care providers are also subject to greater record keeping requirements respecting their obtaining, prescribing and dispensing of such drugs. This is due to the fact that certain drugs have a greater likelihood of abuse, addiction and adverse consequences to patient health if utilized inappropriately, than do other drugs. The DEA administers the CSA. In doing so, it is empowered to schedule a drug as a controlled substance. International control of Dihydroetorphine in Schedule I of the Single Convention on Narcotic Drugs, 1961 in 1998, forms the basis for the DEA action. Dihydroetorphine is a derivative of Thebaine, a natural constituent of opium and thus a controlled substance under
21 USC 812 and
21 CFR Part 1308.12 (b) (1) (16).
Text of Rule
SECTION 1. CSB 2.26 is created to read:
CSB 2.26 Addition of dihydroetorphine to schedule II. (1) Section
961.16 (2) (a) 4r., Stats., is created to read:
Fiscal Estimate
1. The anticipated fiscal effect on the fiscal liability and revenues of any local unit of government of the proposed rule is: $0.00.
2. The projected anticipated state fiscal effect during the current biennium of the proposed rule is: $0.00.
3. The projected net annualized fiscal impact on state funds of the proposed rule is: $0.00.
Initial Regulatory Flexibility Analysis
These proposed rules will be reviewed by the department through its Small Business Review Advisory Committee to determine whether there will be an economic impact on a substantial number of small businesses, as defined in s.
227.114 (1) (a), Stats.
Copies of Rule and Contact Person
Copies of this proposed rule are available without cost upon request to: Pamela Haack, Department of Regulation and Licensing, Office of Administrative Rules, 1400 East Washington Avenue, Room 171, P.O. Box 8935, Madison, Wisconsin 53708 (608) 266-0495.
Notice of Hearing
Financial Institutions - Securities
NOTICE IS HEREBY GIVEN that pursuant to sections
551.63 (1) and
(2),
551.23 (8) (f),
551.23 (18) and
551.53 (1) (b), Stats., the Division of Securities of the Department of Financial Institutions will hold a public hearing at 345 West Washington Avenue, 4
th Floor Conference Room, at
10:00 a.m. on Thursday, August 23, 2001 to consider the adoption and amendment of rules under the Wisconsin Uniform Securities Law relating to certain securities registration exemptions involving capital formation by businesses.
Written comments in lieu of public hearing testimony may be submitted which must be received no later than the hearing date and should be addressed to the Administrator of the Division of Securities, 345 West Washington Avenue, PO Box 1768, Madison Wisconsin, 53701.
Statutory authority: 551.63 (1) and (2), 551.23 (8) (f), 551.23 (18) and 551.53 (1) (b)
Statutes interpreted: 551.23 (8) (f), 551.23 (18) and 551.53 (1) (b)
Analysis prepared by the Division of Securities
The rulemaking procedures under Chapter
227 of the Wisconsin Statutes are being implemented to propose for adoption a package of securities registration exemption rule provisions (and a related advertising filing exclusion) for use by businesses in raising investment capital. The registration exemption rule proposals are part of a series of recommendations stemming from the February 28, 2001 Governor's Summit on Venture Capital which focused on ways to develop equity capital for businesses. Additional Securities Law-related capital formation proposals stemming from the Summit will be contained in statutory revisions to the securities registration exemptions in ss.
551.23 (8) (g),
551.23 (10) and
551.23 (11) of the Wisconsin Uniform Securities Law to be considered by the Wisconsin legislature during the 2001-2002 Session.
The proposed capital formation subject matter rules, together with a related advertising filing exemption rule, are set forth in four Sections that do the following:
1. Create a new securities transaction registration exemption rule in s.
DFI-Sec 2.02 (9) (n) pursuant to the authority under s.
551.23 (18), Stats., based upon the Model Accredited Investor Exemption developed by the North American Securities Administrators Association (“NASAA") that was adopted on April 27, 1997 by vote of the NASAA membership, including Wisconsin. To date, securities registration exemptions based on the Model Accredited Investor Exemption have been enacted in rule or statute form by a total of 26 states.
2. Increase to $5 million (from the current $1 million) the maximum offering amount that can be raised from investors under the existing Wisconsin-Issuer-Registration- Exemption-by-Filing provision in s.
DFI-Sec 2.028 (4) under the exemption authority granted in s.
551.23 (18), Stats.
3. Expand the definition of “venture capital company" in s.
DFI-Sec 2.02 (4) (a) 3.b. for purposes of the so-called “institutional investor" rule under s.
551.23 (8) (f), Stats., to include a limited liability company (which definition currently is limited to entities organized as corporations, partnerships or associations).
4. Add to the list in s.
DFI-Sec 7.02 (1) (b) of exemptions from the advertising filing requirements of sec. 551.53 (1) (b), Wis. Stats., the disclosure and advertising materials separately filed by businesses and other issuers with the Division to claim use of the new proposed registration exemption in s.
DFI-Sec 2.02 (9) (n) based on the NASAA Model Accredited Investor Exemption.
___________________________
Each section that adopts or amends a rule is followed by a separate analysis which discusses the nature of the revision as well as the reason for it.
A copy of the entirety of the proposed rule revisions to be considered may be obtained upon request to the Division of Securities, Department of Financial Institutions, 345 West Washington Avenue, 4th Floor, P.O. Box 1768, Madison, Wisconsin 53701.
Fiscal Estimate
A summary of the fiscal effects of the proposed rule revisions is as follows: (i) No one-time revenue fluctuations; (ii) Estimated annual fiscal effects are an increase in securities registration exemption fee revenue of $2400 per year; (iii) No long-range fiscal implications; (iv) No fiscal effect on local units of government.
Initial Regulatory Flexibility Analysis
1. Types of small businesses that could be affected by the rule revisions are:
Any small business looking to raise capital in a securities offering utilizing the new proposed registration exemption in s.
DFI-Sec 2.02 (9) (n) based on the NASAA Model Accredited Investor Exemption.
2. Reporting, bookkeeping and other procedures required for compliance with the rules.
Any small business seeking to raise capital in a securities offering utilizing the new proposed registration exemption in s.
DFI-Sec 2.02 (9) (n) would need to make the required filing with the Division containing the necessary information and meeting the requirements set forth in the rule.
Contact Person
A copy of the full text of the proposed rule revisions and fiscal estimate may be obtained from:
Randall E. Schumann (608) 266-3414
Legal Counsel for the Division of Securities
Department of Financial Institutions
345 West Washington Avenue, 4th Floor
P. O. Box 1768
Madison, WI 53701
Notice of Hearing
Financial Institutions - Securities
NOTICE IS HEREBY GIVEN that pursuant to sections 551.63 (1) and (2), 551.29 (1) (c), 551.32 (4) and (7), 551.33 (1), (2) and (6), and 551.52 (3), Wis. Stats., the Division of Securities of the Department of Financial Institutions will hold a public hearing at 345 West Washington Avenue, 4
th Floor Conference Room, at
10:00 a.m. on Thursday, August 23, 2001 to consider the adoption, amendment and repeal of rules in connection with its annual review of the administrative rules of the Division of Securities relating to the operation of Chapter
551, Stats., the Wisconsin Uniform Securities Law.
Written comments in lieu of public hearing testimony may be submitted which must be received no later than the hearing date and should be addressed to the Administrator of the Division of Securities, 345 West Washington Avenue, PO Box 1768, Madison Wisconsin, 53701.
Statutory Authority: 551.63 (1) and (2), 551.29 (1) (c), 551.32 (4) and (7), 551.33 (1), (2) and (6), and 551.52 (3)
Statutes Interpreted: 551.29 (1) (c), 551.32 (4) and (7), 551.33 (1), (2) and (6), and 551.52 (3)
Analysis prepared by the Division of Securities
The rulemaking procedures under Chapter
227 of the Wisconsin Statutes are being implemented for the purpose of effectuating the Division's annual review of the Rules of the Division of Securities. The Division's annual rule revision process for 2001 is conducted for the following purposes: (1) adopting new rules or amending existing rules applicable to the securities broker-dealer, agent, investment adviser, and investment adviser representative licensing provisions relating to certain limited agent examinations, designated supervisor requirements, and the filing of certain branch office information, to thereby effectively regulate new or changed securities licensing developments that have occurred in the securities industry and marketplace that require regulatory treatment; and (2) making modifications to certain existing federal covered security provisions to be consistent with federal securities law requirements.
Proposed revisions are being made in a total of 9 different Sections. A summary of the subject matter and nature of the more significant of the rule revisions follows:
1. Adding a new rule subsection under s.
DFI-Sec 4.01 (3) providing for a new, additional type of limited securities agent examination recently adopted by the National Association of Securities Dealers (required as a result of mandated provisions in the federal Gramm-Leach-Bliley Banking Reform Act of 1999 for bank employees engaged in selling private placement securities offerings).
2. Clarifying and extending the filing deadline requirement under existing rules s.
DFI-Sec 4.04 (8) (a) and
5.04 (5) (a) for broker-dealers and investment advisers to report to the Division regarding the opening or change of address of any branch office location in Wisconsin.
3. Repealing both the licensing requirement in s.
DFI-Sec 4.05 (6) that every broker-dealer must appoint a designated supervisor, and the related examination requirement in DFI-Sec 4.01 (5).
4. Adding a new rule subsection under the existing Federal Covered Security rules in s.
DFI-Sec 2.04 (1) to deal with filings seeking extension of the effectiveness period of notice filings previously made with the Division by unit investment trusts or closed-end investment companies.
___________________________
Each section that adopts, amends or repeals a rule is followed by a separate analysis which discusses the nature of the revision as well as the reason for it.
A copy of the entirety of the proposed rule revisions to be considered may be obtained upon request to the Division of Securities, Department of Financial Institutions, 345 West Washington Avenue, 4th Floor, P.O. Box 1768, Madison, Wisconsin 53701.
Fiscal Estimate Summary
A summary of the fiscal effects of the proposed rule revisions is as follows: (i) No one-time revenue fluctuations; (ii) an estimated annual reduction of federal covered security notice filing fee revenue of $9900 per year; (iii) No long-range fiscal implications; (iv) No fiscal effect on local units of government.
Initial Regulatory Flexibility Analysis
1. Types of small businesses that could be affected by certain of the rule revisions are:
Broker-dealer and investment adviser licensees under the Wisconsin Uniform Securities Law with fewer than 25 full-time employees who meet the other criteria of s.
227.114 (l) (a), Stats. The proposed revisions to the securities broker-dealer and investment adviser recordkeeping and rule of conduct provisions are applicable equally to all broker-dealers and investment advisers because the requirements involved are for the protection and benefit of Wisconsin customers of those firms. All Wisconsin customers of securities broker-dealers and investment advisers are entitled to the public investor protection benefits of the licensing recordkeeping and rule of conduct requirements, irrespective of the size of the firm providing the securities services. Under the rule revision procedure of the Division of Securities, a copy of the proposed rule revisions is mailed to each broker-dealer licensed in Wisconsin, as well as to each investment adviser licensed or notice-filed in Wisconsin, notifying them of the proposed revisions and soliciting written comments or attendance at the public hearing regarding the proposed rules
2. Reporting, bookkeeping and other procedures required for compliance with the rules.
No reporting, bookkeeping, or other procedures applicable to broker-dealers or investment advisers were added in this rulemaking package. Rather, several existing broker-dealer and investment adviser requirements were either repealed or relaxed in the following respects: (i) filing deadlines for broker-dealers and investment advisers to report branch office openings and changes of address were extended; and (ii) the licensing requirement that every broker-dealer must appoint a designated supervisor was repealed, together with the related examination requirement.
Contact Person
A copy of the full text of the proposed rule revisions and fiscal estimate may be obtained from:
Randall E. Schumann (608) 266-3414
Legal Counsel for the Division of Securities
Department of Financial Institutions
345 West Washington Avenue, 4th Floor
P. O. Box 1768
Madison, WI 53701
Notice of Hearing
Health & Family Services
NOTICE IS HEREBY GIVEN that, pursuant to s.
149.143 (2) (a) 2.,
3., and
4. and
(3), Stats., the Department of Health and Family Services will hold a public hearing to consider the amendment of ss.
HFS 119.07 (6) (b) (intro) and health care premium tables and 119.15, Wis. Adm. Code, relating to operation of the Health Insurance Risk-Sharing Plan (HIRSP), and the emergency administrative rules taking effect on the same subject on July 1, 2001.
Date & Time Location
July 31, 2001 Conference Room 638 A
Tuesday State Office Building
1:00 p.m.
1 West Wilson Street
Madison WI
The hearing site is fully accessible to people with disabilities. Parking for people with disabilities is available in the parking lot behind the building or in the Doty Street Parking Ramp. People with disabilities may enter the building directly from the parking lot at the west end of the building or from Wilson Street through the side entrance at the east end of the building.
Analysis Prepared by the Department of Health and Family Services
The State of Wisconsin in 1981 established a Health Insurance Risk-Sharing Plan (HIRSP) for the purpose of making health insurance coverage available to medically uninsured residents of the state. One type of medical coverage provided by HIRSP is the Major Medical Plan. This type of coverage is called Plan 1. Eighty-six percent of the 10,790 HIRSP policies in effect in March 2001 were of the Plan 1 type. Plan 1 has Option A ($1,000 deductible) or Option B ($2,500 deductible). The average premium rate increase for Plan 1 contained in these updated HIRSP rules is 3.4%. Rate increases for specific policyholders range from 0.0% to 4.9%, depending on a policyholder's age, gender, household income, deductible and zone of residence within Wisconsin. According to state law, HIRSP premiums must fund 60% of plan costs and cannot be less than 150% of the amount an individual would be charged for a comparable policy in the private market.
A second type of coverage provided by HIRSP is supplemental coverage for persons eligible for Medicare. This type of coverage is called Plan 2. Plan 2 has a $500 deductible. Fourteen percent of the 10,790 HIRSP policies in effect in March 2001 were of the Plan 2 type. The average premium rate increase for Plan 2 contained in these updated HIRSP rules is 3.4%. Rate increases for specific policyholders range from 0.0% to 4.9%, depending on a policyholder's age, gender, household income, deductible and zone of residence within Wisconsin. These respective rate increases for Plan 1 and Plan 2 reflect industry-wide cost increases and adjust premiums to a level that more accurately reflects actual claim costs.
The department through these rules is amending two sections of the HIRSP program administrative rules:
1.
The rules are updating HIRSP premium rates in ch.
HFS 119 in accordance with the authority and requirements set out in s.
149.143 (3) (a), Stats. The Department is required to set premium rates by rule. Rates must be calculated in accordance with generally accepted actuarial principles. Policyholders are to pay 60% of the costs of HIRSP. The HIRSP premium rate tables in ch.
HFS 119 are updated in accordance with these principles and requirements for the time-period beginning July 1, 2001.
2.
The rules are also updating the total HIRSP insurer assessments and provider payment rates in accordance with the authority and requirements set out in s.
149.143 (2) (a) 3. and
4., Stats. With the approval of the HIRSP Board of Governors and as required by statute, the Department of Health and Family Services approved a methodology that reconciles HIRSP program costs, policyholder premiums, insurance assessments and collected health care provider contributions for the most recent calendar year. The adjustments to the insurer assessments and the provider payment rates, contained in the updated HIRSP administrative rules for the time-period beginning July 1, 2001, are the result of this reconciliation process for calendar year 2000.
Identical HIRSP emergency rules will be published to take effect on July 1, 2001.
Contact Person
To find out more about the hearing or to request a copy of the proposed rules, write or phone:
Randy McElhose
Division of Health Care Financing
P.O. Box 309, Room B274
Madison, WI 53701-0309
(608) 267-7127 or, if you are hearing impaired, (608) 266-1511 (TTY)
If you are hearing or visually impaired, do not speak English, or have other personal circumstances which might make communication at the hearing difficult and if you, therefore, require an interpreter, or a non-English, large-print or taped version of the hearing document, contact the person at the address or phone number above. A person requesting a non-English or sign language interpreter should make that request at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.
Written comments on the proposed rule received at the above address no later than August 7, 2001 will be given the same consideration as testimony presented at the hearing.
Fiscal Estimate
These rules update HIRSP policyholder premium rates effective July 1, 2001. They also update HIRSP insurer assessments and provider payment rates for the 12-month period beginning July 1, 2001. These updates are being performed to reflect changing HIRSP costs, and in accordance with a statute-specified methodology, in order to offset program costs. Annual fiscal updates to the HIRSP rules generally take effect in July each year. The fiscal updates contained in these rules were developed by an independent actuarial firm and reviewed and approved by the HIRSP Board of Governors. By law, the Board is a diverse body composed of consumers, insurers, health care providers, small business and other affected parties.
It is estimated that the proposed changes will increase HIRSP program revenues by $21,016,500 in State Fiscal Year 2002, compared to State Fiscal Year 2001. This amount is the combined result of an increase of $9,719,414 in insurer assessments, an increased adjustment (levy) of $9,862,542 regarding provider payments, and an increase of $1,434,544 in policyholder premiums. This increase in HIRSP program revenue is expected to pay for a corresponding increase in HIRSP program expenditures for the payment of services, provided in State Fiscal Year 2002. As a result, the net fiscal effect is projected to be zero. These rule changes will not, by themselves, affect the expenditures or revenues of local government. There is no local government involvement in the administration of HIRSP.
Initial Regulatory Flexibility Analysis
The rule changes will affect HIRSP policyholders, the Department of Health and Family Services and the Department's fiscal agent. The rule changes will not affect small businesses as “small business" is defined in s.
227.114 (1) (a), Stats. Although the program statutes and rules provide for assessment of insurers to help finance HIRSP, no assessed insurer is a small business as defined in s.
227.114 (1) (a), Stats. Moreover, s.
149.143, Stats., prescribes how the amount of an insurer's assessment to help finance HIRSP is to be determined and, similarly, how the health care provider payment rate is to be calculated.
Notice of Hearing
Higher Educational Aids Board
NOTICE IS HEREBY GIVEN That pursuant to s.
39.395, Stats, the Higher Educational Aids Board will hold a public hearing to consider the creation of ch.
HEA 13, Wis. Adm. Code, relating to the administration of the Teacher Education Loan Program.
The Public Hearing will be held:
Date and Time Location
July 20, 2001 Senate Hearing Room #201SE
9:00 a.m. to 9:30 a.m. State Capitol
Madison, Wisconsin
The hearing is fully accessible to people with disabilities.
Analysis Prepared by the Higher Educational Aids Board
The
1997 Wisconsin Act 27 created s.
39.395, which provides for loans to Wisconsin residents enrolled in the teacher education program of the Milwaukee Teacher Education Center (MTEC). The Wisconsin Higher Educational Aids Board (HEAB) administers this program under s.
39.395. These would be the final administrative rules for this program. The student who receives the award must agree to teach in the Wisconsin school district operating under Chapter
119 of the Wisconsin State Statutes, First Class School System. For each year the student teaches in an eligible school district, 50% of the loan is forgiven. If the student does not teach in an eligible district, the loan must be repaid at an interest rate of 5%. There are provisions for a maximum and minimum award amount, an application process, loan forgiveness, terms of repayment, and deferment of loan repayment for borrowers. The proposed administrative rules will not affect expenditures of State funds for the Teacher Education Loan Program.
Statutory Authority
Fiscal Estimate
The proposed rules cause no alterations in the present allocation of funds so there is no fiscal impact.
Contact Person
To find out more about the hearing or request copies of the proposed rules, write, call or e-mail:
Jim Buske
Higher Educational Aids Board
131 West Wilson Street, P.O. Box 7885
Madison, WI 53707-7885
608) 267-9865
Written Comments on the proposed rules received at the above address no later than July 13, 2001 will be given the same consideration as testimony present at the hearing.
Initial Regulatory Flexibility Analysis
The proposed rules concern a student financial aid program and have no affect upon small business in Wisconsin.
Notice of Hearing
Higher Educational Aids Board
NOTICE IS HEREBY GIVEN That pursuant to s.
20.005, Stats, the Higher Educational Aids Board will hold a public hearing to consider the creation of ch.
HEA 14, Wis. Adm. Code, relating to the administration of the Teacher of the Visually Impaired Loan Program.
The Public Hearing will be held:
Date and Time Location
July 20, 2001 Senate Hearing Room #201SE
9:00 a.m. to 9:30 a.m. State Capitol
Madison, Wisconsin
The hearing is fully accessible to people with disabilities.
Analysis Prepared by the Higher Educational Aids Board
The
1997 Wisconsin Act 27 created s.
20.005, which provides for loans to Wisconsin residents enrolled in an in-state or eligible out-of-state institution in a program that prepares them to be licensed as teachers of the visually impaired or orientation and mobility instructors. The Wisconsin Higher Educational Aids Board administers this program under s.
20.005. These would be the final administrative rules for this program. The student who receives the award must agree to be a licensed teacher of the visually impaired or an orientation and mobility instructor in a designated school or school district. For each of the first two years the student teaches and meets the eligibility criteria 25% of the loan is forgiven. For the third year, 50% is forgiven. If the student does not teach and/or meet the eligibility criteria, the loan must be repaid. There are provisions for an application process, loan forgiveness, terms or repayment and deferment of loan repayment. The proposed administrative rules will not affect expenditures of State funds for the Teacher of the Visually Impaired Loan Program.
Statutory Authority
Fiscal Estimate
The proposed rules cause no alterations in the present allocation of funds so there is no fiscal impact.
Contact Person
To find out more about the hearing or request copies of the proposed rules, write, call or e-mail:
Jim Buske
Higher Educational Aids Board
131 West Wilson Street, P.O. Box 7885
Madison, WI 53707-7885
(608) 267-9865
Written Comments on the proposed rules received at the above address no later than July 13, 2001 will be given the same consideration as testimony present at the hearing.
Initial Regulatory Flexibility Analysis
The proposed rules concern a student financial aid program and have no affect upon small business in Wisconsin.
Notice of Hearing
Commissioner of Insurance
Notice is hereby given that pursuant to the authority granted under s.
601.41 (3), Stats., and the procedure set forth in under s.
227.18, Stats., OCI will hold a public hearing to consider the adoption of the attached proposed rulemaking order affecting s.
Ins 6.59, relating to revising Wisconsin agent licensing rules to be reciprocal and more uniform under Gramm Leach Bliley Act and the NAIC Producer model.
Hearing Date, Time and Location
Date: July 25, 2001
Time: 10:00 a.m., or as soon thereafter as the matter may be reached
Place: Room 6, OCI, 121 East Wilson Street, Madison, WI
Written comments on the proposed rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received at OCI within 14 days following the date of the hearing. Written comments should be addressed to: Robert Luck, OCI, PO Box 7873, Madison WI 53707
Analysis Prepared by the Office of the Commissioner of Insurance
Under the recently enacted federal Gramm Leach Bliley Act (the “GLBA"), Wisconsin and other states must become reciprocal or uniform. These changes would accomplish reciprocity.
The changes would also attempt to make insurance producer licensing more uniform and simplify multi-state licensing. If Wisconsin and at least 27 other states do not enact “reciprocal" or “uniform" rules regarding licensing, a federal licensing body similar to the “NASD" would be created to take over insurance agent licensing functions from the states. The National Association of Insurance Commissioners (the “NAIC") model Producer Act was developed by state insurance regulatory bodies to accomplish this and this rule adopts many provisions of the NAIC model. New limited lines licenses are created for rental car insurance and legal expense insurance. Certain modifications in the licensing procedures are required by new agent licensing software purchased and currently being installed by OCI. The following analysis discusses the specific changes.
The lines of intermediary licenses issued by Wisconsin have been changed to reflect the lines required for reciprocity and 2 new limited lines. Reciprocity requires Wisconsin to issue licenses for the same authority which a non resident applicant has in their home state. The NAIC model sets out the major lines required including the new “personal lines" license and this rule change conforms Wisconsin to these. In addition, to deal with the various limited line licenses issued by other states, the rules creates a Miscellaneous Limited line which grants the nonresident agent only the authority which the resident state granted under its limited line license.
New software purchased by OCI requires that insurers appoint agents by line of authority so that a cross check can be made to insure that both the agent and the insurer hold the authorities being requested. These revisions do not change the amount of fees required to be paid. Insurers will be billed for each appointment submitted for an agent. An additional appointment may have to be submitted if the insurer doesn't not specify all lines of authority in the initial appointment or the agent later is granted additional authority and thus the insurer would need to add this new authority with an additional appointment. Currently, this additional authority is granted without additional fees, but new software purchased for agent licensing will not accommodate this. The current term, “listing," used for these “appointments" is changed to conform to the description used by most other states. The effective date of the appointment is made to be 15 prior to the date it is entered on the OCI system to conform to the NAIC model. Also, in conformance with the NAIC model, insurers must appoint agents when they contract with the intermediary or when they receive an application from the intermediary.
The NAIC model changes the information that OCI currently collects regarding possible problems encountered by insurers with agents. The model only requires insurers to categorize terminations as “Not for Cause" or “For Cause." This change adopts that procedure but still requires insurers to inform OCI in writing of the same possible problems encountered by the insurer as currently reported.
OCI licenses intermediary corporations or other “unnatural" persons on a voluntary basis but requires the licensing of all individuals in the firm who solicit insurance. (This corporate licensing is done primarily so that Wisconsin firms can get licensed in other states which require licensing in the corporation's resident state.) This rule broadens the definition of what entities can receive a “firm" license to conform to the NAIC model.
The GLBA requires that states accept either the NAIC model nonresident application (which OCI has done for many years) or the application that the nonresident originally submitted to their resident state. This rule conforms Wisconsin to this requirement. Specific NAIC standards for denial of licensure and defining “for cause" terminations by insurers are incorporated. A licensing requirement that an applicant is over age 18 is also added.
The definitions of some terms used to define when a license is required and exemptions to licensing are defined using the same language as the NAIC model. The exemptions to licensing in the model are very similar to the current exemptions contained in s.
628.02, Stats.
The reporting requirements of agents to inform OCI of administrative actions, criminal proceedings and lawsuits against the agent involving misrepresentation, fraud, theft etc., are conformed to the NAIC model and clarified to more clearly define the actions to be reported and what information must be submitted.
Since a new major line of authority called “Personal Lines" has been created in the NAIC model, prelicensing educational requirements are defined for this line. The continuing education requirements are defined for all the new major and limited lines of insurance created. Two new self study courses are listed as being recognized for continuing education. The requirements for crediting continuing education for courses taken to maintain an identified designation are clarified to allow this only for individuals who currently hold that designation.
Initial Regulatory Flexibility Analysis
This rule does not impose any additional requirements on small businesses.
Fiscal Estimate
There will be no state or local government fiscal effect.
Contact Person
Patrick Bass, Services Section, Office of the Commissioner of Insurance, at (608) 266-0110 or at 121 East Wilson Street, PO Box 7873, Madison WI 53707-7873.
Notice of Hearing
Commissioner of Insurance
Notice is hereby given that pursuant to the authority granted under s.
601.41 (3), Stats., and the procedure set forth in under s.
227.18, Stats., OCI will hold a public hearing to consider the adoption of the attached proposed rulemaking order affecting s.
Ins 6.60, relating to agent transactions with customers.
Hearing Information
Date: August 3, 2001
Time: 10:00 a.m., or as soon thereafter as the matter may
be reached
Place: Room 6, OCI, 121 East Wilson Street, Madison, WI
Written comments on the proposed rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received at OCI within 14 days following the date of the hearing. Written comments should be addressed to: Stephen Mueller, OCI, PO Box 7873, Madison WI 53707
Analysis Prepared by the Office of the Commissioner of Insurance
Statutes interpreted: ss.
600.01, 618. 39 (1), 628.04 (1), 628.10 (2) (b), 628.34 (12), Stats.
In general insurance agents occupy a position of trust and credibility with their customers. Customers permit these agents to enter their homes and to acquire financial and other personal information. Most agents merit this trust and respect the responsibility it engenders. Unfortunately a few agents abuse this confidence and engage in non-insurance transactions with customers that are not in the customer's best interest.
There are recent examples of this type of abuse:
1. Out of state promoters of illegal “corporate promissory note" programs have specifically recruited insurance agents (most not licensed as securities agents) to illegally market millions of dollars in illiquid unregistered securities to their customers in Wisconsin. These programs resulted in devastating financial loss to Wisconsin citizens who placed their trust in the agents partly due to their credibility as licensed insurance agents.
2.
Several insurance agents have sold investments in viatical settlements to their customers for commissions without exploring or understanding the risks and securities law implications of these sales.
3.
Several agents borrowed money from customers or encouraged customers to invest in businesses controlled by the agents. Often the funds loaned or invested are derived from life insurance settlements or liquidated annuities.
Wisconsin and federal securities law prohibits certain personal financial transactions with customers by securities agents as “dishonest or unethical business practices" or “taking unfair advantage of a customer". This conduct includes borrowing from a customer and acting as custodian for money or securities of a customer. Securities agents are required to disclose all securities transactions to their employing broker-dealers and obtain the broker-dealer's written authorization for any “off the books" transactions. Some insurers also prohibit their listed insurance agents from borrowing from customers. The proposed rule incorporates normal standards of ethical behavior that prudent agents practice and their customers deserve and expect. This rule does not place an unnecessary burden on the legitimate business of insurance.
Section
628.10 (2) (b) Stats. allows the commissioner to “
…revoke, suspend,
…the license of any intermediary if the commissioner finds that the licensee is unqualified as an intermediary, is not of good character or has repeatedly or knowingly violated an insurance statute or rule
… of the commissioner
… , or if the intermediary's methods and practices in the conduct of business endanger, or financial resources are inadequate to safeguard, the legitimate interests of customers and the public
…". The proposed rule will specifically prohibit conduct that falls within the proscriptions of this statute without limiting the types of conduct that constitute grounds for license sanction. The rule will assist agents and others to determine when conduct with customers is prohibited and places an agent's insurance license at risk.
The rule defines personal financial transactions and prohibits agents from engaging in such transactions with persons with whom they have conducted insurance business within 3 years prior to the transaction. Transactions with relatives and bona fide business transactions with customers are allowed as long as there are sufficient safeguards to protect the customer's interests. The rule incorporates violations of state and federal securities and other related laws and prohibits misleading statements regarding an agent's training and qualifications.
This proposed rule incorporates specific guidelines concerning insurance agents who engage in sales of illegal multiple employer welfare trusts and other forms of group health insurance by unauthorized insurers. Typically conducted under the false guise of being “ERISA" or federally-governed and thus exempt from state regulation these plans frequently are self-funded and fail, leaving unpaid claims and lost premiums. OCI has held agents who participate in these programs to strict standards of accountability. This rule codifies the position of OCI that agents may not escape responsibility by citing their reliance on the pronouncements of the promoters that the program is “exempt from state regulation" under ERISA. This strict standard is in keeping with the professional standards that everyone expects from their insurance professionals. This rule makes it clear that an agent who participates in sales of these illegal plans commits an unfair trade practice in violation of s.
628.34 (12) Stats. and violates s.
618.39 Stats. by assisting an unauthorized insurer.
Section
628.34 Stats. defines and prohibits unfair marketing (trade) practices. Sub. (11) prohibits “other unfair trade practices" including “any other unfair or deceptive act or practice in the business of insurance, as defined in sub. (12)." Sub. (12) allows the commissioner to define additional “ specific unfair trade practices by rule, after a finding that they are misleading, deceptive, unfairly discriminatory, provide an unfair inducement, or restrain competition unreasonably." This is the statutory authority for the proposed rule. While the conduct proscribed by this rule may involve misrepresentation or unfair inducement as described in sections
628.34 (1) &
(2) Stats. it also constitutes unfair trade practices and unfair or deceptive acts or practices in the business of insurance within the meaning of s.
628.34 (11) Stats. The Commissioner finds that the conduct prohibited by this rule is misleading, deceptive, unfairly discriminatory, provides an unfair inducement and restrains competition unreasonably within the meaning of s.
628.34 (12) Stats. and finds further that sales of unauthorized insurance as ERISA-exempt in violation of s.
618.39 Stats. are harmful to the public and that agents who become involved in the marketing or placement of these plans must be held strictly accountable for their actions.
Initial Regulatory Flexibility Analysis
This rule does not impose any additional requirements on small businesses.
Fiscal Estimate
There will be no state or local government fiscal effect.
Contact Person
A copy of the full text of the proposed rule changes and fiscal estimate may be obtained from the OCI internet WEB site at
http://www.state.wi.us/agencies/oci/ocirules.htm or by contacting Inger Williams, Services Section, Office of the Commissioner of Insurance, at (608) 266-0110 or at 121 East Wilson Street, PO Box 7873, Madison WI 53707-7873.
Notice of Hearing
Public Service Commission
NOTICE IS GIVEN that pursuant to s.
227.16 (2) (b), Stats., a hearing will be held on
Friday, July 27, 2001, at 9:00 a.m. in the Amnicon Falls Hearing Room at the Public Service Commission Building, 610 North Whitney Way, Madison, Wisconsin, to consider the creation of ch.
PSC 130, Wis. Adm. Code, relating to municipal rights-of-way issues before the Commission.
This building is accessible to people in wheelchairs through the Whitney Way first floor (lobby) entrance. Parking for people with disabilities is available on the south side of the building. Any person with a disability who needs additional accommodations should contact the docket coordinator listed below.
Written Comments
Any person may submit written comments on these proposed rules. The hearing record will be open for written comments from the public, effective immediately, and until Friday, July 20, 2001, at noon (Thursday, July 19, 2001, at noon, if filed by fax). All written comments must include a reference on the filing to docket 1-AC-188. File by one mode only.
If filing by mail, courier, or hand delivery: Address as shown in the box. Industry parties should submit an original and 15 copies. Members of the general public need only file an original.
If filing by fax: Send fax comments to (608) 266-3957. Fax filing
cover sheet MUST state
“Official Filing," the docket number (1-AC-188), and the number of pages (limited to 20 pages for fax comments).
Hearing Date:
|
Friday, July 27, 2001
at 9:00 a.m.
|
Hearing Location:
|
Public Service Commission
610 North Whitney Way
Madison, WI
|
Comments Due:
Friday
July 20, 2001 - Noon
FAX Due:
Thursday
July 19, 2001 - Noon
|
Address comments to:
Lynda L. Dorr
Secretary to the Commission
Public Service Commission
P.O. Box 7854
Madison, WI 53707-7854
FAX (608) 266-3957
|
Analysis prepared by the Public Service Commission of Wisconsin
Upon complaint, the Commission has authority to determine the reasonableness of an ordinance, contract or resolution (ordinance) promulgated by a municipality that regulates the location of utility facilities in municipal rights-of-way (ROW). This rule creates several criteria the Commission will apply when considering a complaint involving utility access to and use of ROW within a municipality. These include the following:
Under the rules, the Commission will consider an ordinance to be unreasonable if it unduly discriminates between utilities seeking access to municipal ROW or if it denies a utility access to ROW without good cause.
The rules recognize that a municipality may require a utility to pay the actual cost of functions undertaken by a municipality to manage utility access to ROW, and identifies specific costs that may be collected through a pre-excavation permit fee.
The rules specify that it is unreasonable for a municipality to require a utility to install underground a 100 kilovolt or greater electric transmission line at the utility's expense, but such a requirement would be reasonable if the municipality or a third party agrees to pay the difference in construction costs between overhead and underground installation.
Similarly, it is unreasonable for a municipality to require special construction conditions to be followed at the utility's expense unless there is an adequate health or safety justification. Aesthetics alone is not a reasonable basis for requiring underground construction. Special construction conditions would be reasonable if the municipality or a third party agrees to pay the difference in construction costs between the standard and special construction conditions.
Under the rules it is unreasonable for a municipality to require a utility to restore a ROW to a condition that is better than the pre-excavation condition.
The rules specify that it is reasonable for a municipality to require a utility to provide adequate bonding and insurance if the municipality has reasonable grounds to question the utility's financial responsibility or compliance ability. The rules also identify advance workplan notification requirements and mapping requirements.
A Statement of Scope on this rule was approved by the Commission on June 2, 1999, and was published in the Wisconsin Administrative Register on June 30, 1999.
Text of Proposed Rule
SECTION 1.
Chapter
PSC 130 is created to read:
Chapter PSC 130
Municipal Regulation of Utility Rights-of-Way
PSC 130.01 Definitions. In this chapter:
(1) “Actual cost" means identifiable costs that are reasonably incurred by a municipality, but does not include a contribution of surplus income to general revenues.
(2) “Municipality" means a city, village, or town.
(3) “Ordinance" includes any ordinance or resolution adopted by the governing body of a municipality relating to municipal rights-of-way or any contract entered into by a municipality relating to municipal rights-of-way.
(4) “Transmission and distribution facilities" includes any utility pipe, pipeline, wire, cable, duct, conduit, fiber optics or radio signal transmission equipment and associated utility plant and equipment, whether underground or above ground, in a municipal right-of-way.
(5) “Utility" means a public utility, as defined in s.
196.01 (5), Stats., and includes a telecommunications carrier, as defined in s.
196.01 (8m), Stats.
PSC 130.02 Scope. This chapter applies to complaints involving utility access to and use of rights-of-way within a municipality under ss.
196.499 (14) and
196.58 (4), Stats.
PSC 130.03 Undergrounding and special construction conditions. (1) (a) Except as provided in par. (b), an ordinance that requires a utility to install underground a 100 kilovolt or greater transmission line at the expense of the utility is unreasonable.
(b) Paragraph (a) does not apply if the municipality or a third party agrees to reimburse the utility for the difference in cost between above ground and underground construction.
(2) (a) Except as provided in par. (b), an ordinance that requires a utility to install, at the utility's expense, transmission or distribution facilities which are not consistent with the utility's practice for design or construction of utility facilities is unreasonable unless there is an adequate health, safety, or public welfare justification for the requirement. Aesthetics alone is not an adequate basis to justify an undergrounding requirement.
(b) Paragraph (a) does not apply if all of the following conditions are met:
1. The municipality or a third party agrees to reimburse the utility for the difference in cost or between the standard design or construction techniques of the utility and any special design or construction requirement sought by the municipality.
2. The special design or construction requirement is consistent with safe and reliable construction practices.
PSC 130.04 Discrimination. (1) It is unreasonable for a municipality to unduly discriminate between utilities seeking access to municipal rights-of-way.
(2) If space availability is limited, a municipality may permit a utility with an obligation to serve to receive access to a particular right-of-way before a utility that is not bound by an obligation to serve.
(3) It is unreasonable for a municipality to deny a utility any access to municipal rights-of-way without good cause.
PSC 130.05 Management function costs. (1) A municipality may require a utility to pay the actual cost of functions undertaken by the municipality to manage utility access to and use of rights-of-way. These management functions include all of the following:
(a) Registering utilities.
(b) Except as provided in sub. (2), issuing, processing, and verifying excavation or other utility permit applications, including supplemental applications.
(c) Inspecting utility job sites and restoration projects before, during, and after construction.
(d) Maintaining, supporting, protecting, or moving user equipment during work in the streets, highways, and other public places.
(e) Undertaking restoration work inadequately performed by a utility after providing notice and the opportunity to correct the work.
(f) Revoking utility permits.
(g) Maintenance of databases.
(h) Scheduling and coordinating highway, street, and right-of-way work relevant to a utility permit.
(2) A municipality shall be responsible for its costs incurred as a member of the one-call system under s.
182.0175, Stats.
(3) It is reasonable for a municipality to recover costs incurred under sub. (1) (a), (b), and (c) through a pre-excavation permit fee.
(4) A municipality may recover costs incurred under sub. (1) (d), (e), and (f) only from the utility that is responsible for causing the municipality to incur the costs.
PSC 130.06 Bonds and insurance. A municipality may impose reasonable bonding and insurance requirements on a utility seeking a permit to use a right-of-way, provided the municipality has reasonable grounds to question the financial responsibility or compliance ability of the utility.
PSC 130.07 Restoration. An ordinance is unreasonable if it requires a utility to restore a right-of-way to a condition that improves upon the pre-excavation condition. At the utility's option, a utility may undertake the restoration or pay the municipality a fee to cover the actual cost of restoration.
PSC 130.08 Compliance with existing law. An ordinance is unreasonable if it is not in substantial compliance with state statutes, including ss.
66.0831 and
80.32 (4), Stats.
PSC 130.09 Permanent relocation of utility facilities. (1) An ordinance that requires a utility to permanently relocate transmission or distribution facilities in a right-of-way at the expense of the utility is unreasonable unless there is an adequate health, safety, or public welfare justification for the requirement.
(2) An ordinance that requires a utility to permanently relocate transmission or distribution facilities in a right-of-way at the expense of the utility substantially for the benefit of a person other than the municipality is unreasonable.
PSC 130.10 Advanced excavation workplans. An ordinance that requires a utility to submit to a municipality its future construction or excavation workplans is reasonable in order for the municipality to coordinate work within a right-of-way. It is unreasonable for a municipality to deny a permit for a utility excavation not identified on a workplan if the excavation is needed by the utility to restore service to an existing customer, to provide service to a new customer, or for other good cause.
PSC 130.11 Facilities mapping. For purposes of acquiring a permit, a municipality may not require a utility to submit facilities mapping, other than utility right-of-way construction plans and field sketches in the format maintained by the utility, for facilities that are the subject of the permit.
PSC 130.12 Abandonment. An ordinance is not unreasonable if it requires a utility to notify the municipality of the utility's intent to abandon transmission or distribution facilities and requires the utility to provide a map, at the utility's expense, depicting the location of any facility within that municipality that the utility intends to abandon. The format of the map shall be mutually agreed upon by the municipality and the utility.
PSC 130.13 Ordinance challenges. An ordinance is unreasonable if it requires that, as a condition of obtaining a permit, the utility agree that the ordinance is valid and not subject to challenge.
________________________
Initial Regulatory Flexibility Analysis
The proposed rules would apply to complaints regarding municipal rights-of-way ordinances. Current law authorizes the Commission to investigate such complaints and to determine if an ordinance is reasonable. The Commission anticipates complaints would primarily come from utilities, which would include some small businesses, as defined in s.
227.114 (1), Stats. (There are approximately 76 small telecommunications utilities in Wisconsin.) The proposed rule does not create any new obligations or responsibilities for complainants, including small businesses. Therefore, the proposed rule does not have an effect on small businesses.
Fiscal Estimate
This rule has no fiscal impact.
Contact Person
Questions from the media may be directed to Jeffrey L. Butson, Public Affairs Director at (608) 267-0912. Other questions regarding this matter should be directed to docket coordinator Scot Cullen at (608) 267-9229. Hearing or speech-impaired individuals may also use the Commission's TTY number, (608) 267-1479.
The Commission does not discriminate on the basis of disability in the provision of programs, services, or employment. Any person with a disability who needs accommodations to participate in this proceeding or who needs to obtain this document in a different format should contact the docket coordinator listed above.
