Scope statements
Employee Trust Funds
The Department of Employee Trust Funds (DETF) gives notice pursuant to s.
227.135, Stats., that it proposes to
modify an existing administrative rule, specifically s.
ETF 10.12, and create or amend other provisions of the administrative code as necessary to accomplish the goals of this proposed administrative rule change.
Subject
The proposed rule revision would change the method used to value accounts of separate retirement systems in the retirement trust fund.
Objectives of the rule. The main purpose of the proposed rule revision in s.
ETF 10.12 is to change the formulas used to value investments of separate accounts to be consistent with recommended financial industry practice. The revision would also fine tune transaction definitions to facilitate the most effective implementation of the new formulas. For example, the revision might redefine deposits to allow deposits on the last day of the month rather than the first day.
Policy analysis
Section
ETF 10.12 currently prescribes an investment valuation formula that is not totally consistent with recommended practice or conducive to establishing levels of process quality assurance. For example, the current rule does not enable a rate of earnings comparison between the separate accounts with the rate of earnings of the trust fund as a whole.
Since the existing rule was first implemented, departmental experience and guidance from financial experts of the State of Wisconsin Investment Board have identified ways to improve the valuation method and to add procedures that will help ensure complete and accurate valuations.
Policy alternatives to the proposed rule
Take no action.
DETF could allow the present administrative rule to remain in effect, but considers this undesirable. Existing rule allows neither full compliance with recommended practices of the financial industry, nor efficient, effective quality assurance of the valuations.
Its anticipated effect is mainly upon the Department of Employee Trust Funds, the State of Wisconsin Investment Board, the Retirement Trust Fund, and separate retirement systems participating in the Retirement Trust Fund.
Statutory authority
Staff time required
The Department estimates that state employees will spend 20 hours developing this rule.
Description of all entities affected by the rule.
Its anticipated effect is mainly upon the Department of Employee Trust Funds, the State of Wisconsin Investment Board, the Retirement Trust Fund, and separate retirement systems participating in the Retirement Trust Fund.
Comparison to federal regulations
There appear to be no existing or proposed federal regulations directly affecting the valuation of investments made by separate retirement systems into the Retirement Trust Fund.
Employee Trust Funds
The Department of Employee Trust Funds (DETF) hereby gives notice pursuant to s.
227.135, Stats., that it proposes to
modify an existing administrative rule, specifically ss.
ETF 10.30 (5) (b) and
(8),
10.75 (2) (a), and
10.82 (2), and create or amend other provisions of the administrative code as necessary concerning the receipt of documents by facsimile (fax).
Subject
This proposed rule change is concerned with the Department's acceptance of documents, including benefit application forms and similar documents, by fax without requiring the filing of the original document.
Objectives of the rule. The proposed rule change is to codify a general policy that receipt of a document via fax is functionally identical to receipt of that document by other available means, such as mail delivery or delivery by hand, for purposes of administering benefits under ch.
40 of the Wisconsin Statutes.
Policy analysis
In 1995 the DETF promulgated s.
ETF 10.82 for the purpose of clarifying when documents were received by, and filed with, the Department. Eligibility for benefit and other determinations related to benefits administered by the Department are often affected by the date the document is received. The rule also allowed for documents to be filed via fax transmission, in order to preserve the earliest possible date of receipt, and it included several additional requirements, including that the original of the document be provided to DETF within 14 days so that it could be added to the participant's file for future reference. The rule expressly applied only to forms listed in the rule.
The purpose of the 1995 rule was to allow a person to “lock in" an earlier date of receipt by DETF than might be possible if the applicant relied only on mail or other delivery methods that are less immediate than electronic transmission.
Since then, an occasional question has arisen about whether the rule prohibited receiving documents by fax if the document was not specifically listed in the rule or whether DETF had technically “received" a document at all if it arrived by fax but some criteria of the rule had not been fully satisfied.
Some administrative rules written since 1995 have included specific authorization to receive a particular document by fax. See ss.
ETF 10.30 (5) (b) and
(8) and
10.75 (2) (a) for examples. The Secretary has determined that a general policy, rather than a piecemeal approach, can and should now be codified.
Beginning in 1997, DETF has optically imaged participant files to computer instead of retaining paper copies of documents. Since then, for DETF record keeping purposes, a fax is functionally identical to the original document.
The Secretary of DETF has decided to propose a rule expressly acknowledging that DETF may receive almost any document by fax. If, during the course of the rule-making process, any document is identified for which this general policy is inadvisable, the rule will identify that document as an exception to the general rule. For example, one exception to this policy will be a document, such as some powers-of-attorney, which expressly state that a copy may not be relied upon to the same extent as the original. Court orders may be another exception, unless received directly from the signing judge.
Policy alternatives to the proposed rule
(1) Take no action.
DETF could allow the present administrative rule to remain in effect as is, but considers this undesirable. The existing rule has the potential for creating confusion about whether DETF has ever technically “received" a document listed in the rule if, for example, it is faxed to a different DETF fax machine than listed in the rule, or if the original of the document is not supplied within 14 days, or if some other criteria in the rule is not fully satisfied. The documents listed in the rule do not include every possible document DETF might be offered, so questions have arisen about the rule's impact, if any, on non-listed documents.
(2) Impose greater restrictions on use of fax documents.
DETF considers it undesirable to unnecessarily or unreasonably limit use of technology or available means of transmitting documents and information between DETF and persons having an interest in benefits administered by this Department. While legitimate concerns about privacy, security and accuracy must be addressed, these concerns do not outweigh the purpose of improving DETF responsiveness to its clients by allowing for more rapid forms of communication.
Statutory authority
Staff time required
The Department estimates that state employees will spend 20 hours developing this rule.
Description of all entities affected by the rule.
The rule is not regulatory. Its anticipated effect is mainly upon the Department, but any person or entity who might voluntarily choose to communicate with DETF by using a fax machine may take advantage of the proposed rule. It is anticipated that these persons will mainly be participants in the Wisconsin Retirement System or their authorized representatives or beneficiaries.
Comparison to federal regulations
There appear to be no existing or proposed federal regulations directly affecting the submission of documents to DETF by fax, or DETF's ability to accept fax documents.
Financial Institutions - Banking
Subject
Section DFI—Bkg 74.09 (5) relating to authorizations to consolidate accounts.
Policy analysis
The objective of the rule is to create s. DFI—Bkg 74.09 (5). The purpose of the rule is to set forth requirements for an authorization received by a licensee from a creditor for consolidating accounts. The rule establishes criteria regarding the form and content of the authorization.
Statutory authority
Staff time required
80 hours.
Comparison to federal regulations
None.
Health and Family Services
Subject
The Department proposes to develop a rulemaking order that modifies ch. HFS 119 regarding the Wisconsin Health Insurance Risk-Sharing Plan (HIRSP). Modifications to ch. HFS 119 need to reflect the annual actuarial update of HIRSP policyholder health insurance premiums and insurer and provider assessments for the time period beginning July 1, 2004.
Policy analysis
HIRSP is a longstanding program for high medically at-risk citizens. The Department has amended ch.
HFS 119 each state fiscal year since 1998. This proposed rulemaking order involves the HIRSP update for the state fiscal year beginning July 1, 2004. The amended rule focuses on policyholder premiums and insurance and provider assessments. Rule changes occur annually in accordance with updated HIRSP costs and funding requirements, statutory requirements, Wisconsin's 2003-05 biennial budget, generally accepted actuarial principles, and the actions taken by the HIRSP Board of Governors at its April 21, 2004, meeting. By law, the HIRSP Board is diverse including consumers, insurers, health care providers, small business and other affected parties.
The specific entities affected by this rule are HIRSP policyholders, Wisconsin's health insurers who are required by law to fund a portion of HIRSP's costs, and health care providers who serve HIRSP policyholders and who are also required to fund a portion of HIRSP's costs. The larger effect of this rule involves the health care marketplace. HIRSP increases the number of Wisconsin citizens with health insurance. HIRSP offers health care insurance to high medically at-risk citizens, at rates subsidized by health care insurers and providers of service. Wisconsin citizens are helped because they can obtain otherwise unavailable health insurance coverage. This allows them to improve their health status. Health insurers find themselves unable to serve this marketplace niche and health care providers receive additional customers.
The effect of the amended rule will be to ensure compliance with state statutes as well as Department coverage of ongoing HIRSP costs for state fiscal year 2005. Without this annual update, HIRSP costs will soon exceed HIRSP revenues.
Comparison to federal regulations
There are no existing or proposed federal regulations that address rates for the HIRSP program.
Statutory authority
Sections
149.143 (2) (a) 2.,
3., and
4., and
(3) and
227.11 (2) Stats. The rule interprets ss.
149.14 (5m),
149.14 (8),
149.142,
149.143,
149.146,
149.16 (3) (b),
149.165, and
149.17 (4), Stats.
Staff time required
The estimated DHCF staff time and other resources needed to develop and promulgate these rules will be about 130 hours. Included in this estimate is the time required to make actuarial calculations, rule drafting and promulgation.
Natural Resources
Subject
Objective of the rule. Rule changes to Chapters
106,
149, and
219 are needed to authorize use of the 2
nd Edition of the Whole Effluent Toxicity Testing Methods Manual for WPDES Permits.
In whole effluent toxicity (WET) tests, fish and other aquatic organisms are exposed to wastewater effluent samples for a specific time period to determine if those effluents contains harmful mixtures of pollutants that may cause death (acute toxicity) or interfere with growth or reproduction to test organisms (chronic toxicity). Monitoring for acute and chronic toxicity is required in many Wisconsin Pollutant Discharge Elimination System (WPDES) permits in order to determine the potential for impairment of fish and aquatic life communities that may exist in the streams or lakes receiving the wastewater. WPDES Permit holders and consultants working on their behalf conduct these toxicity tests in accordance with a 1996 Methods Manual entitled “State of Wisconsin Aquatic Life Toxicity Testing Methods Manual, 1st Edition" (PUBL-WW-033-96). Improvements to the test methods based on the latest science warrant updating the Methods Manual to a 2nd Edition.
This rule change effort was first brought to the Natural Resource Board's attention in a Pink Sheet dated March 8, 1999. Revisions to the Wisconsin Administrative Code are needed in order to replace the 1
st edition of the Methods Manual with a 2
nd edition (PUBL-WT-797-04, 2004). Attached is a revised pink sheet for code modifications to Sections
NR 106.09 (1),
NR 149.22, and
NR 219.04 (Table A, footnote 8) to allow incorporation of the 2
nd Edition of the Methods Manual by reference. Upon adoption of these changes, all permittees and associated laboratories will be required to follow the methods included in the revised document in order to submit tests for compliance with a WPDES permit or to maintain laboratory certification or registration.
Description of Policy Issues/Analysis of Policy Alternatives
Since the 1st Edition of the Methods Manual was created in 1996, Department staff have worked cooperatively with the UW-Madison State Lab of Hygiene (SLH), private WET labs, permittees, and others to develop and pilot revisions to whole effluent toxicity test methods. Staff have collected data and met face-to-face with laboratories and permittees who have experience with WET tests in order to gain their input and learn from their experiences; conducted research at the SLH to develop and pilot proposed method revisions; and held discussions regarding implementation issues surrounding proposed method changes. Much work has been done to improve WET test reliability, including research that was done by the SLH to reduce problems associated with federal chronic WET test methods using the fathead minnow. Changes also include additional test acceptability criteria, new lab staff qualifications and training requirements, and other adjustments to help insure quality data for use when determining compliance with WPDES permit requirements.
Early drafts of the 2nd Edition also included the addition of methods for testing an algal species in order to extend the protections afforded by WET testing to Wisconsin's aquatic plant community. However, those methods have been withdrawn from the 2nd Edition at this time due to limitations on resources needed to conduct field validation studies and internal concerns over the effects of implementation on WPDES Permit backlogs.
Adoption of the 2nd Edition of the WET Methods Manual will benefit several constituents, including WPDES Permittees, consultants, and other interested parties. Specifically, these changes will bring test methods up-to-date with the current science while providing needed details on specific testing and sampling procedures, types of tests, definitions, quality control/quality assurance procedures, etc.
Statutory authority
Staff time required
Sections
NR 106.09,
NR 149.22, and
NR 219.04, Wis. Adm. Code, currently incorporate the Methods Manual by reference, all with language similar to the following (from NR 219.04, Table A, footnote 8):
“Compliance monitoring must be performed in accordance with the specifications in the ''State of Wisconsin Aquatic Life Toxicity Testing Methods Manual, 1st Edition," Wisconsin Department of Natural Resources, 1996…"
Since the actual rule revisions needed to incorporate the latest edition will be simple (i.e., in ss.
NR 219.04, only need to change the “1
st edition" to say “2nd edition" and “1996" to “2004"), staff do not believe that significant time or explanation will be needed to explain the proposed language changes.
To further simplify rule language, and to streamline future revisions to the Methods Manual, staff are proposing to change applicable language in ss.
NR 106.09 and
NR 149.22, Wis. Adm. Code, to refer to the language shown above from NR 219.04, which incorporates the Methods Manual by reference. Doing this will allow future editions of the Methods Manual to be incorporated by revising only ch.
NR 219, Wis. Adm. Code.
Staff do not believe that any significant unresolved issues exist with this package since actual rule language changes are not complicated and a significant amount of information sharing was accomplished by soliciting input from external constituents on preliminary drafts while making improvements to the Methods Manual. Approximately 150 hours of staff time will be needed to process this rule.
Comparison to federal regulations
The United States Environmental Protection Agency (USEPA) promulgated regulations concerning the use of WET methods to protect aquatic life in National Pollutant Discharge Elimination System (NPDES) permits in 1995 (60 FR 53529, October 16, 1995). The USEPA-approved WET methods are specified in the “Guidelines Establishing Test Procedures for the Analysis of Pollutants",
40 CFR 136.3, Tables IA and II, of the Clean Water Act. These WET methods employ standardized, freshwater, marine, and estuarine vertebrates, invertebrates, and plants to directly measure acute and chronic effects of effluents and receiving waters monitored under NPDES permits. On November 19, 2002, USEPA revised and made available updated method manual editions.
As regulations, adherence to the specific test procedures outlined in these USEPA documents is required when monitoring WET under the NPDES program. The extent that such procedures are “requirements" depends on the text of the documents themselves (i.e., words of obligation, such as “must" or “shall" indicate a required procedure; “may" or “should" provide flexibility so that states and laboratories may optimize test methods for specific situations). Wisconsin's Methods Manual is intended to comply with the requirements of
40 CFR part 136, while providing testing and laboratory procedures specific to those performing WET testing for the WPDES program. EPA's methods, out of necessity, include many provisions which allow different protocols to be followed, depending on the intended use of the test results and the area of the country in which the test is to be applied. Wisconsin's Methods Manual eliminates many of these optional parameters in order to insure the consistency of methods used by Wisconsin labs and permittees and, where possible, to improve upon available WET methods and make them more appropriate for use by Wisconsin permittees.
All Entities Affected by the Rule
The Methods Manual contains WET test methods that must be followed by permittees and their contract laboratories when required in a WPDES permit. WET tests are required in a WPDES permit when an effluent is discharged to a surface water and site-specific factors suggest that there is a potential for the discharge of toxic substances in amounts that may be harmful to fish and aquatic life. Therefore, municipal and industrial permittees with surface water discharges that have WET test requirements in their permits are affected by these rules. Laboratories that perform WET tests for WPDES compliance are also affected.
Natural Resources
Subject
Objective of the rule. SB 324 was recently passed by the Wisconsin Legislature at the recommendation of the DNR, the Wisconsin Fabricare Institute, the Governor's Council for the Dry Cleaner Environmental Response Fund (DERF) Program, and the Department of Revenue. This law contains changes to s.
292.65, Wis. Stats., relating to the Dry Cleaner Environmental Response Fund program, administered by the DNR. Based on these statutory changes, ch.
NR 169 will need to be modified to incorporate the new provisions in the law. The most significant change relates to the deadline date for submittal of reimbursement applications for eligible applicants who are conducting environmental investigations and cleanups per ch.
NR 169 and the ch.
NR 700 cleanup rule series. A rule revision advisory group will be established comprised of DNR representatives, drycleaning industry representatives, representatives of the Governor's Council for the DERF program, and consulting firm representatives. Changes to the rule will affect these customers.
Description of Policy Issues/Analysis of Policy Alternatives
The following summarizes the statutory changes contained in SB 324 that will need to be addressed in ch.
NR 169, Wis. Admin. Rule. In addition, enhancements to the current rule language will be discussed and recommended as necessary by the rule-revision advisory group.
•
Eligibility clarification:
Statutory changes include clarification that past operators, as well as past drycleaner owners are eligible for the program; that for closed facilities that were once licensed, property owners that owned the property when the facility was in operation are eligible for the program, but not new property owners after a facility has closed; and that an agent may submit the reimbursement application for an award without having the eligible applicant sign off on the reimbursement application.
•
Reimbursements from other sources
Requires owners or operators to notify the department of any application, including any insurance claim made to obtain funds to cover eligible costs or to obtain a tax credit based on eligible costs, as well as any funds or tax credits arising from the application. Such payments shall be either repaid to the department if the reimbursement has already occurred, or will be subtracted out of the reimbursement application request.
•
Deadline Date
Stipulates that an owner or operator may not submit a reimbursement application if they have not submitted a potential claim notification form by August 30, 2008.
•
Payment of fees
Stipulates that all fees, interest and penalties must be paid or an application shall be denied, but does not specify who must make those payments.
•
Environmental Fund Clarification
Stipulates that the DERF fund can reimburse the Environmental Fund if there would otherwise be an eligible applicant for the site, and that all costs are reimbursed minus the deductible.
•
Third Party Site Discovery Costs
Allows some limited third party site scoping costs to be included in the reimbursement application from an eligible applicant, if the costs were incurred prior to the Department or the drycleaner knowing there was a release from their facility. Costs are limited to only the discovery of contamination and do not include other investigative or remedial action costs incurred by the third party.
Statutory authority
Section
292.65, Wis. Stats. authorizes the DNR to create rules to implement the Dry Cleaner Environmental Response Fund Program. Chapter
NR 169 became effective in January 2000, and was revised in May, 2003 to incorporate previous statutory changes and other program enhancements.
Staff time required
Staff estimate approximately 4 months to revise the rule and request public hearing from the NRB. The final rule should be completed within 9 months of the initiation of rule changes. The changes being considered are not substantial changes to how the program is being implemented, but incorporation of necessary refinements to the program. Working with the affected parties in drafting the rules should expedite the rule-making process.
Comparison to federal regulations
There are no federal regulations regarding the remediation of drycleaner facilities. This rule addresses implementation issues associated with the reimbursement program, and does not affect existing cleanup rules already in place in the ch.
NR 700 rule series.
Transportation
Subject
Objective of the rule. This proposed rule making will amend ch.
Trans 112 by modifying the type of driver record and criminal offenses that makes a person ineligible to obtain a school bus endorsement or to transport pupils. The rule extends the disqualification period to more than 5 years for specific crimes and creates a lifetime disqualification for some crimes. The proposed rule defines procedures for requesting and processing out-of-state criminal background checks for drivers that have lived in Wisconsin for less than 2 years and establishes a fee for the background check. The proposed rule will also define standards for employment of school bus drivers and others that transport pupils. Additional proposed amendments will clarify for the driver, the board physicians, employers and the Department of Justice (DOJ) issues that have proved to be problematic when sanctions are reviewed in a judicial review proceeding.
Policy alternatives to the proposed rule
Currently, ch.
Trans 112 defines certain driver record and criminal offenses that make a person ineligible to obtain a school bus endorsement or transport pupils, but there are many serious crimes, which are not included. DMV is the source for the driver record information and DOJ is the source for the criminal background information. If the driver has resided in Wisconsin for less than 2 years, there is no background check conducted with the former state of residency. There are no checks done against other Wisconsin state agency Registry files that contain reported or criminal activity.
The proposed rule changes are required under
2003 Wis. Act 280. The rule will define a procedure for conducting an out-of-state criminal background check and establish fees only to cover the cost of the process. The changes to the ineligibility periods will be defined by the severity of the crime and the likelihood that the person could rehabilitate and become safe to drive pupils. For example, an individual convicted of serious sexual crimes against children may never be eligible to obtain a school bus endorsement or to transport pupils. The proposed amendments are intended to protect pupils during transportation to, from and during school activities.
The proposed amendments to ss.
Trans 112.04,
112.18 and
112.20 will clarify for the driver, the board physicians, employers and DOJ issues that have proved to be problematic when sanctions are reviewed in a judicial review proceeding.
Comparison to federal regulations
None.
Statutory authority
Staff time required
Approximately 200 hours.
Workforce Development
Subject
Ch.
DWD 12, grievance procedure for resolving complaints of employment displacement under the Wisconsin Works program.
Policy analysis
Section 49.141 (5) (am), Stats., as renumbered by
2003 Wisconsin Act 173, and s. DWD 12.05 (9) prohibit the filling of a vacancy created by an employer terminating a regular employee for the purpose of filling the position with a W-2 participant or a position of a person on layoff, strike, or other labor dispute from the same or a substantially equivalent job within the same organizational unit by a W-2 participant.
The department has an existing grievance procedure that sets forth the steps for resolving complaints of alleged violations of this prohibition. Section
49.141 (5) (bm), Stats., as created by
2003 Wisconsin Act 173, requires the department to promulgate a rule specifying the grievance procedure. The procedure provides the steps a complainant must take to file a complaint, the program agency responsibilities for initial review and investigation of a complaint, the procedures and time limits for hearing complaints and issuing decisions, and provisions for appealing program agency action on a complaint.
Comparison to federal regulations
Federal law prohibits an adult in a family receiving assistance under a state program funded by a federal Temporary Assistance for Needy Families (TANF) block grant from being employed or assigned when any other individual is on layoff from the same or any substantially equivalent job or if the employer has terminated the employment of any regular employee to fill the vacancy with a participant in a TANF-funded program. States are required to establish and maintain a grievance procedure for resolving complaints of alleged violations of this prohibition.
Statutory authority
Staff time required
100 hours.
Workforce Development
Subject
Ch.
DWD 290, prevailing wage rates on state or local public works projects.
Policy analysis
Sections
66.0903 (1) (g) and
103.49 (1) (d), Stats., provide a two-tiered definition of “prevailing wage rate" under which the rate in any area is the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, for a majority of hours worked in the trade or occupation on projects in the area. If there is no rate at which a majority of the hours worked is paid, a weighted average methodology applies based on the pay of the highest-paid 51% of hours worked in that trade or occupation on projects in that area.
The department has had an informal policy of looking at the hourly basic rate of pay and fringe equivalent as separate figures and requiring an exact match of both the hourly rate of pay and the fringe equivalent in determining whether there is a majority at a particular rate. The department has now determined that it is more appropriate to determine whether there is a majority of hours reported that receive a certain total economic benefit that is the combined value of the hourly rate of pay and fringe equivalent. If there is a majority of reported hours paid at a certain total economic benefit, the department will issue a prevailing wage determination that is the most commonly reported hourly rate of pay and fringe equivalent that receive that total economic benefit.
Comparison to federal regulations
There are no federal prevailing wage rate regulations that apply to state or local public works projects. The federal prevailing wage regulations that apply to federally-funded public works projects determine the prevailing hourly rate of pay and the prevailing fringe equivalent as completely separate inquiries. Under the federal system, the resulting combination of the hourly rate of pay and fringe equivalent issued by the U.S. Department of Labor may result in a combination of hourly pay and fringe equivalent that is not the most commonly paid total economic benefit on private projects.
Statutory authority
Staff time required
100 hours.
