Emergency rules now in effect
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.
Copies of emergency rule orders can be obtained from the promulgating agency. The text of current emergency rules can be viewed at www.legis.state.wi.us/rsb/code.
Agriculture, Trade & Consumer Protection (2)
1.
Rules adopted revising
chs. ATCP 10 and 11 relating to chronic wasting disease in cervids.
Finding of emergency
(1) Chronic wasting disease is a contagious disease known to affect several species of the cervid family, including elk, white-tailed deer, black-tailed deer, red deer and mule deer. The disease is always fatal. At the present time, there is no scientific evidence to suggest that chronic wasting disease is transmitted to non-cervids or to humans. But there is limited scientific knowledge about the disease, and this lack of knowledge has contributed to public concerns.
(2) The cause of chronic wasting disease is not fully understood. The disease appears to be related to aberrant protein molecules called prions. By an unknown mechanism, prions apparently cause other protein molecules in the cervid brain to take aberrant forms. The disease causes microscopic vacuoles (holes) in the brain. Diseased cervids become emaciated, display abnormal behavior patterns, and experience loss of bodily functions.
(3) Science does not understand how chronic wasting disease is spread. It is thought that infected cervids can transmit the disease to other cervids, either directly or by contaminating their environment. It appears that cervid-to-cervid contact facilitates the spread of the disease.
(4) On February 27, 2002, the national veterinary services laboratory informed Wisconsin that it had confirmed chronic wasting disease for the first time in this state. The laboratory confirmed the disease in test samples collected from 3 free-ranging white-tailed deer killed by hunters during the November 2001 gun deer season. The Wisconsin Department of Natural Resources (DNR) collected these samples as part of a statewide disease surveillance program. With the voluntary cooperation of hunters, DNR collected test samples from deer killed and registered by hunters at selected hunting registration sites around the state. DNR collected a total of 345 samples statewide, including 82 samples at the Mt. Horeb registration station. The 3 deer that tested positive for chronic wasting disease were all registered at the Mt. Horeb station. The 3 deer were shot in close proximity to each other in Vermont Township in Dane County. We do not know how the 3 deer were exposed to chronic wasting disease, nor do we know the extent of infection in the free-ranging herd.
(5) We do not know whether any captive cervids in Wisconsin are infected with chronic wasting disease (there are no findings to date). If captive cervids are infected, the close proximity of cervids within a captive herd may facilitate the spread of disease within the herd. The movement of infected cervids between herds may spread the disease to other herds. Contact between free-ranging and captive cervids may also spread the disease.
(6) Persons importing captive cervids to Wisconsin must obtain an import permit from the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP). Importers must identify the herd of origin and the herd of destination. A veterinarian must certify that the cervids appear to be in good health, and that they have been tested for tuberculosis and brucellosis. There is no chronic wasting disease testing requirement, because there is no way to test live cervids for the disease.
(7) Since 1995, a total of 2,604 captive cervids have been legally imported into Wisconsin. This includes 2,020 elk, 191 whitetail deer, 12 mule deer and 387 other cervids. Chronic wasting disease has been found in free-ranging herds or in some captive herds in Colorado, Nebraska, Oklahoma, Kansas, Montana, South Dakota, and Wyoming. Since 1995, a total of 410 captive cervids have been legally imported to Wisconsin from these states. Most other states lack active chronic wasting disease surveillance programs, so the full extent of the disease is not known with certainty.
(8) DATCP currently registers captive cervid herds, other than white-tail deer herds. DNR currently licenses captive white-tail deer herds. Since 1998, DATCP has sponsored a voluntary program to monitor for chronic wasting disease among the captive herds that it registers. Approximately 50 herd owners currently participate in this program.
(9) Since chronic wasting disease was confirmed in this state, there has been widespread public concern about the disease. The public has expressed concern about the health of free-ranging deer and elk, and about potential threats to humans, livestock and deer-related businesses. Hunters and consumers have expressed food safety concerns. There is currently no scientific evidence to suggest that chronic wasting disease is transmissible to non-cervids or to humans. But there is limited scientific knowledge about the disease, and this lack of knowledge has contributed to public concerns.
(10) In order to protect the public peace, health, safety and welfare, it is necessary to take immediate steps to prevent and control the spread of chronic wasting disease in this state. Among other things, it is necessary to impose further controls on the import and movement of captive cervids and to implement a mandatory monitoring program. DATCP may adopt rules to implement these measures.
(11) Normal rulemaking procedures require up to a year or more to complete. A temporary emergency rule is needed to protect the public peace, health, safety and welfare, pending the adoption of longer-term rules. This emergency rule will implement essential prevention and control measures on an immediate, interim basis.
Publication Date:
April 9, 2002
Effective Date:
April 9, 2002
Expiration Date:
September 6, 2002
Hearing Date:
May 22, 2002
Extension Through:
May 31, 2003
2.
Rules adopted revising
ch. ATCP 96 relating to milk producer security.
Finding of emergency
(1) The Legislature, in
2001 Wis. Act 16, repealed and recreated Wisconsin's agricultural producer security program. The new program is codified in ch.
126, Stats. (the “new law"). The new law takes effect, for milk contractors, on May 1, 2002. The new law is intended to protect milk producers against catastrophic financial defaults by milk contractors.
(2) The new law applies to milk contractors, including dairy plant operators, producer agents and other milk handlers, who procure producer milk in this state. Under the new law, milk contractors must be licensed by the Wisconsin department of agriculture, trade and consumer protection (DATCP). Milk contractors must pay license fees and do one or more of the following:
(a) Contribute to Wisconsin's agricultural producer security fund, to help secure milk payments to milk producers.
(b) File security with DATCP.
(c) File financial statements with DATCP, showing that the contractor meets minimum financial standards specified in ch.
126, Stats.
(3) The new law regulates producer agents (who market milk and collect payment for milk producers, without taking title to the milk), but treats them differently than other milk contractors. Producer agents may have lower fund participation requirements, and may file smaller amounts of security, than other milk contractors. The program may provide correspondingly less compensation to producers if a producer agent defaults.
(4) It is important to clarify the following matters before the new law takes effect for milk contractors on May 1, 2002:
(a) The treatment of dairy plant operators who provide custom processing services to milk producers, without marketing or taking title to milk or dairy products.
(b) The treatment of producer agents. Under s.
126.51, Stats., DATCP must adopt rules for milk contractors who wish to qualify as producer agents under the new law.
(c) The treatment of persons who market only processed dairy products for milk producers, without procuring, marketing or processing raw producer milk.
(d) The method by which milk contractors calculate and report milk payment obligations, for the purpose of calculating fund assessments and security requirements under the new law.
(5) Under s.
126.81 (4), Stats., DATCP may require milk contractors to disclose their security and fund contribution status to milk producers. It is important for milk contractors to begin making these disclosures soon after the new law takes effect, so that producers can evaluate the financial risk associated with milk procurement contracts. Disclosures are important, because not all milk contractors are required to participate in the agricultural security fund or file security with DATCP.
(6) It is not possible, by normal rulemaking procedures, to adopt these essential clarifications and disclosure requirements by May 1, 2002. DATCP must, therefore, adopt them by emergency rule. This emergency rule is needed to implement the new law, to protect the financial security of milk producers, to preserve fair competition in the dairy industry, and to avoid unnecessary confusion and expense for dairy businesses.
Publication Date:
April 29, 2002
Effective Date:
April 29, 2002
Expiration Date:
September 26, 2002
Hearing Date:
May 16, 2002
Extension Through:
January 23, 2003
Commerce
(Financial Assistance to Businesses and Communities, Chs. Comm 105 to 128)
The Wisconsin Department of Commerce proposes an order to create
ch. Comm 118 relating to the Agricultural Development Zone Program.
Finding of emergency
The Department of Commerce finds that an emergency exists and that adoption of the rule is necessary for the immediate preservation of public health, safety and welfare.
Facts constituting the emergency are as follows:
1.
In accordance with s.
560.798 (5), Stats., the Department of Commerce has the responsibility to promulgate rules for the operation of an agricultural development zone to provide for the attraction, promotion, retention, and expansion of agricultural businesses in the state.
2.
Section
560.798 (3), Stats., makes available certain tax benefits for certified business within an agricultural development zone; tax credits first apply to tax years beginning on or after January 1, 2003.
3.
Commerce, being the agency with primary authority for economic development in the state, recognizes that there is a verified need to attract, promote retain, and expand Wisconsin agricultural businesses. For example, over the past 50 years, Wisconsin has experienced an average of six dairy farms leaving production each day.
4.
In the year 2001, state milk production declined by more than one billion pounds, resulting in a near 5% decline in milk production.
5.
Western states have increased their cheese production, while Wisconsin experiences declining milk production and dairy processing activities; this program would immediately assist Wisconsin in regaining it's prominence in dairy and dairy processing production.
6.
The creation of this program combined with other economic development programs in the state is expected to increase the competitiveness of the Wisconsin dairy industry.
This emergency rule is being created in order that the process of designating an agricultural development zone be commenced as soon as possible and that such eligible businesses may become certified and participate in the tax benefits through the Agricultural Development Zone Program.
Publication Date:
August 13, 2002
Effective Date:
August 13, 2002
Expiration Date:
January 10, 2003
Hearing Date:
October 16, 2002
Corrections
Rules adopted amending
ch. DOC 316, relating to medical, dental and nursing copayment charges.
Exemption from finding of emergency
The department of corrections adopts this emergency rule pursuant to the statutory requirements of
2001 Wis. Act 109. The Act provides, in relevant part:
“Using the procedure under section
227.24 of the statutes, the department of corrections shall promulgate the rules that are required under section
302.386 (4) (a) of the statutes relating to the deductible, coinsurance, copayment, or similar charge that must be imposed under section
302.386 (3) (b) of the statutes."
and,
“Notwithstanding section
302.386 (3) (b) of the statutes, the rules shall require the department to require that, subject to the exception and waiver provisions under section
302.386 (3) (c) of the statutes, each person to whom section
302.386 (1) of the statutes applies pay a deductible, coinsurance, copayment, or similar charge of at least $7.50 for each request that the person makes for medical or dental services."
Currently, the department's administrative rules provide for a $2.50 copayment under such circumstances as described above. This emergency rule raises the copayment to $7.50 as directed by
2001 Wis. Act 109.
In addition, pursuant to
2001 Wis. Act 109 the department makes no finding of emergency in promulgating this rule.
2001 Wis. Act 109 expressly exempts the department from the statutory requirements to do so.
Publication Date:
September 3, 2002
Effective Date:
September 3, 2002
Expiration Date:
January 31, 2003
Hearing Date:
November 18, 2002
Health and Family Services
(Medical Assistance, Chs. HFS 100—)
Rules adopted creating
ch. HFS 109, relating to SeniorCare.
Finding of emergency
The Department of Health and Family Services finds that an emergency exists and that the rules are necessary for the immediate preservation of the public peace, health, safety or welfare. The facts constituting the emergency are as follows:
The high cost of prescription drugs in Wisconsin and nationwide are especially burdensome on the elderly, many of whom live on a fixed income. Through
2001 Act 16, Wisconsin has addressed the problem those increasingly high costs pose to the elderly by creating section
49.688 of the statutes. Section
49.688 directs the Department to develop and administer the program of prescription drug benefits for the elderly that has come to be known as “SeniorCare." The statute also directs the Department to develop administrative rules for implementing SeniorCare, which the Department has done by creating a new chapter of administrative rules, HFS 109. The rules address a variety of issues associated with operating the program in accordance with section
49.688, Stats., including specifying:
- what prescription drugs are covered;
- who is eligible for benefits and services;
- how the Department determines household income for the program's eligibility determination;
- how the Department monitors compliance by pharmacists and pharmacies; and
- mechanisms for preventing fraud and abuse.
The Department drafted these rules to parallel the prescription drug provisions of the existing Medicaid rules in chs.
HFS 101 to
108. The Department developed the program's administrative elements in consultation with an advisory committee composed of representatives of physicians, counties, seniors and pharmacies.
While the Department is currently in the process of promulgating ch.
HFS 109 as permanent rules, s.
49.688 (5) (a) and
(7) (a), Stats., mandate the initiation of some SeniorCare program elements beginning on September 1, 2002. To meet this deadline, the Department is issuing ch.
HFS 109 as emergency rules to preserve the public welfare.
Publication Date:
September 1, 2002
Effective Date:
September 1, 2002
Expiration Date:
January 29, 2003
Hearing Date:
October 10, 2002
Health and Family Services
(Health, Chs. HFS 110—)
Rules adopted creating
s. HFS 115.04 (9) to (13), relating to screening newborn infants for congenital disorders.
Finding of emergency
The Department of Health and Family Services finds that an emergency exists and that rules are necessary for the immediate preservation of the public peace, health, safety or welfare. The facts constituting the emergency are as follows:
The early identification of particular congenital and metabolic disorders that are harmful or fatal to persons with the disorders is critical to mitigating the negative effects of such disorders. Therefore, Wisconsin Statute 253.13 requires that every infant born be subjected to blood tests for congenital and metabolic disorders, as specified in administrative rules promulgated by the Department. Parents, however, may refuse to have their infants screened for religious reasons. The Department has issued ch.
HFS 115, Screening of Newborns for Congenital and Metabolic Disorders, to administer this statutory requirement. Currently, s.
HFS 115.04 lists eight congenital and metabolic disorders for which the state hygiene laboratory must test newborn blood samples.
In determining whether to add or delete disorders from the list under s.
HFS 115.04, s.
HFS 115.06 directs the Department to seek the advice of persons who have expertise and experience with congenital and metabolic disorders. For this purpose, the Department established the Wisconsin Newborn Screening Umbrella Advisory Group. Section
HFS 115.06 also lists six criteria on which the Department must base its decision to add to or delete disorders from s.
HFS 115.04. These criteria are:
1. Characteristics of the specific disorder, including disease incidence, morbidity and mortality.
2. The availability of effective therapy and potential for successful treatment.
3. Characteristics of the test, including sensitivity, specificity, feasibility for mass screening and cost.
4. The availability of mechanisms for determining the effectiveness of test procedures.
5. Characteristics of the screening program, including the ability to collect and analyze specimens reliably and promptly, the ability to report test results quickly and accurately and the existence of adequate follow-up and management programs.
6. The expected benefits to children and society in relation to the risks and costs associated with testing for the specific condition.
In consideration of these criteria, the Wisconsin Newborn Screening Umbrella Advisory Group recently recommended that the Department add five aminoacidopathies, i.e., amino acid-related disorders, to the eight disorders currently screened for and listed in s.
HFS 115.04. These disorders
are:
• Maple Syrup Urine Disease;
•Homocystinuria;
•Tyrosinemia;
•Citrullinemia; and
•Argininosuccinic Acidemia.
Persons with these disorders can experience serious medical consequences such as failure-to-thrive, developmental delays, seizures, mental retardation and death.
The additional costs associated with these five additional screening tests is less than a dollar per baby screened because the amino acids in the blood sample are measured simultaneously with the acylcarnitines for Fatty Acid Oxidation and Organic Acidemias. In the absence of this screening, the Department estimates the annual Wisconsin costs for these disorders to be $144,909. The Department also estimates the annual Wisconsin costs of this screening to be $29,134. Therefore, the cost benefit from these five screening tests is $115,775.
The Advisory Group also recommended that the Department immediately begin screening newborns for these additional disorders. Before this testing can begin, the Department must change its rules to add the five new disorders to the existing list under s.
HFS 115.04. Permanent rules require six or more months to take effect. Collectively, these disorders occur, on average, once in every 30,000 births. Given an annual birthrate of about 68,000 in Wisconsin, delaying the effective date of these rules by six or more months may result in one to three persons being born with one of these five disorders and that fact escaping detection. To eliminate this possibility and ensure that newborn testing begins as soon as possible, the Department has chosen to promulgate this rule change on an emergency basis while the Department promulgates a permanent rule.
While the Department is currently in the process of promulgating these amendments to the permanent rules, the Department must implement these changes immediately to preserve the public health. Therefore, the Department is issuing these identical amendments as an emergency order.
Publication Date:
October 12, 2002
Effective Date:
October 12, 2002
Expiration Date:
March 11, 2003
Hearing Date:
December 17, 2002
Natural Resources (4)
(Fish, Game, etc., Chs. NR 1-)
1.
Rules adopted revising
chs. NR 10 and 45, relating to the control and management of chronic wasting disease.
Finding of emergency
The emergency rule procedure, pursuant to s.
227.24, Stats., is necessary and justified in establishing rules to protect the public health, safety and welfare. The state legislature has delegated to the department rule-making authority in
2001 Wisconsin Act 108 to control the spread of Chronic Wasting Disease (CWD) in Wisconsin. CWD poses a risk to the health of the state's deer herd and citizens and is a threat to the economic infrastructure of the department, the state, it citizens and businesses.
Publication Date:
July 3, 2002
Effective Date:
July 3, 2002
Expiration Date:
November 30, 2002
Hearing Date:
August 12, 2002
Extension Through:
April 1, 2003
2.
Rules adopted revising
ch. NR 10, relating to the 2002 migratory game bird season.
Finding of emergency
The emergency rule procedure, pursuant to s.
227.24, Stats., is necessary and justified in establishing rules to protect the public welfare. The federal government and state legislature have delegated to the appropriate agencies rule- making authority to control the hunting of migratory birds. The State of Wisconsin must comply with federal regulations in the establishment of migratory bird hunting seasons and conditions. Federal regulations are not made available to this state until mid-August of each year. This order is designed to bring the state hunting regulations to conformity with the federal regulations. Normal rule-making procedures will not allow the establishment of these changes by September 1. Failure to modify our rules will result in the failure to provide hunting opportunity and continuation of rules which conflict with federal regulations.
Publication Date:
August 30, 2002
Effective Date:
August 30, 2002
Expiration Date:
January 27, 2003
Hearing Date:
September 26, 2002
3.
Rules adopted repealing and recreating
s. NR 20.20 (49) (d) and (61) (c), relating to the closure of carp fishing on Cedar Lake and connected waters in Polk and St. Croix counties.
Finding of emergency
The Department of Natural Resources finds that an emergency exists and that rules are necessary for the immediate preservation of the public peace, health, safety or welfare. A statement of facts constituting the emergency is:
Spring viremia of carp virus is of international animal health concern. The virus effects fishes in the minnow family in nature. Minnows are extremely important forage fish for many important sport fishes in Wisconsin and are also important to the bait and aquaculture industries. Assuring the health of minnow populations and preventing the spread to other waters is important in preserving the welfare of Wisconsin citizens by protecting popular and economically valuable sport and bait fisheries. Little is currently known about the extent of the virus and until we can increase our knowledge, this closure will limit the potential spread from transport of fish and/or their parts and fluids.
Publication Date:
October 3, 2002
Effective Date:
October 3, 2002
Expiration Date:
March 2, 2003
Hearing Date:
November 11, 2002
Finding of emergency
The waters of Lake Superior were not part of the extensive off-reservation treaty rights litigation known as the Voigt case. The parties stipulated that the Lake Superior rights would be dealt with, to the extent possible, by agreement rather than litigation. This rule represents the implementation of the most recent negotiated amendments to the agreement between the State and the Red Cliff and Bad River Bands. These amendments incorporate the results of a new population estimate that was not available previously. In order to comply with the terms of the agreement, the State must change its quotas and commercial fishing regulations at the earliest possible date. Failure of the State to do so will not only deprive state fishers of increased harvest opportunities available under the agreement, but could also jeopardize the agreement, putting the entire Lake Superior fishery at risk of litigation.
Publication Date:
November 1, 2002
Effective Date:
November 1, 2002
Expiration Date:
March 31, 2003
Hearing Date:
December 13, 2002
Nursing
Rules adopted creating
s. N 4.10, relating to malpractice insurance coverage for nurse-midwives.
Exemption from finding of emergency
Under Section
13 of
2001 Wisconsin Act 52, the Board of Nursing is directed to use the procedure under s.
227.24, Stats., in promulgating the rules required under s.
441.15 (5) (b) of the statutes. Under that procedure, the Board of Nursing may promulgate this rule for the period before permanent rules become effective. The Board of Nursing need not provide evidence of the necessity of preservation of the public peace, health, safety, or welfare in promulgating this rule.
Analysis prepared by the Department of Regulation
2001 Wisconsin Act 52 makes a number of changes to the provisions affecting nurse-midwives, including that licensed nurse-midwives carry malpractice insurance in an amount determined by rules to be promulgated by the Board of Nursing. This rule establishes those requirements relating to malpractice coverage for nurse-midwives.
Using the procedure under s.
227.24, Stats., the Board of Nursing will promulgate the rules as created by
2001 Wisconsin Act 52, for the period before permanent rules become effective.
Publication Date:
November 5, 2002
Effective Date:
November 5, 2002
Expiration Date:
April 4, 2003
State Treasurer
Rules adopted creating
ch. Treas 1 relating to the Wisconsin College Savings Program Board.
Exemption from finding of emergency
Analysis prepared by the Office of the State Treasurer
Statutes interpreted: s.
14.64 et seq., Stats.
The Wisconsin College Savings Program Board establishes a rule for the operation of the College Savings Program. The rule is designed to grant flexibility to program participants wherever possible, while enabling the State and its private-sector partners to administer the program in a manner that protects the program's financial integrity and viability. Maintaining eligibility as a “qualified tuition program" pursuant to section
529 of the Internal Revenue Code [
26 USC 529] is another primary objective. “529" programs are eligible for a number of federal tax benefits that are attractive to families saving for future college costs. Significant features of the rule are addressed below:
Sections
Treas 1.03,
1.04 and
1.05 describe who may open an account and how to open an account. Section
Treas 1.06 discusses designating a successor owner and describes how to change ownership of an account. Sections
Treas 1.07 and
1.08 define the account beneficiary and how to change the beneficiary on an account.
Section
Treas 1.09 details how to make contributions to an account, including minimum and maximum contribution limits, and how to “rollover" an account balance to another section 529 program. IRS requirements relating to investment direction are also detailed.
Sections Treas 1.11, 1.12 and 1.13 describe account withdrawals, distributions and refunds. Special circumstances
are also provided for in these sections, such as the death or disability of the beneficiary or receipt of a scholarship by a beneficiary. Section
Treas 1.14 sets forth conditions under which the Board may terminate an owner's account. Sections
Treas 1.15 and
1.16 address related fees and penalties.
Publication Date:
January 7, 2002
Effective Date:
January 7, 2002
Hearing Date:
March 5, 2002
Veterans Affairs
Rules adopted amending
s. VA 12.02 (7) and (16), relating to the maximum loan amount under the personal loan program.
Finding of Emergency
The Department of Veterans Affairs finds that an emergency exists and that a rule is necessary for the immediate preservation of the public peace, health, safety or welfare. A statement of the facts constituting the emergency is as follows:
The Department administers a personal loan program that may be used by veterans and their dependents for various statutory purposes. The purposes include debt consolidation, payment of delinquent child support, education expenses, and medical and funeral expenses, and the purchase of a mobile home or business property. The current maximum loan amount, set by the Department at sec. VA 12.02 (7), Wis. Adm. Code, is $10,000. The permissible statutory maximum loan amount may be $15,000, as set by the Department by administrative rule.
The Department proposes to raise the amount to the statutory maximum for several compelling reasons. Raising the maximum loan amount will help stimulate the economy by providing additional resources for veterans and their families. Due to the state of the economy, veterans and their families have a significant need for financial assistance in the form of below market interest rate loans. Additionally, the personal loan program is the primary source of revenue for the veterans trust fund. Immediate infusion of additional assets in the form of personal loans will provide significant financial support for the trust fund. It is expected that increasing the maximum loan amount will result in approximately $4,000,000 of new loan assets over the 8-month period in which it would take to promulgate this rule change using the regular promulgation procedure.
Publication Date:
August 5, 2002
Effective Date:
August 5, 2002
Expiration Date:
January 2, 2003
Hearing Date:
December 6, 2002
