Agency contact person:
Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935. Telephone: (608) 266-0495. Email:
pamela.haack@drl.state.wi.us.
Place where comments are to be submitted and deadline for submission: Comments may be submitted to Pamela Haack at the Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 89235, Madison, Wisconsin 53708-8935. Email to
pamela.haack@drl.state.wi.us. Comments must be received on or before July 3, 2006 to be included in the record of rule-making proceedings.
Notice of Hearing
Regulation and Licensing
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in s. 227.11 (2), Stats., and s. 440.88 (3), Stats., which was created as s. 440.75 by
2005 Wisconsin Act 25, section
9421 (10q) and renumbered by the revisor under s. 13.93 (1) (b), Stats., and interpreting s. 440.88, Stats., the Department of Regulation and Licensing will hold a public hearing at the time and place indicated below to consider an order on emergency rules to create chs.
RL 164 and
165, relating to a code of conduct and renewal requirements for substance abuse professionals.
Hearing Date, Time and Location
Date: June 27, 2006
Time: 9:00 A.M.
Location: 1400 East Washington Avenue
(Enter at 55 North Dickinson Street)
Room 122
Madison, Wisconsin
Appearance 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 Legal Counsel, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by July 3, 2006, to be included in the record of rule-making proceedings.
Analysis prepared by the Department of Regulation and Licensing.
Statutes interpreted: Stats. s.
440.88.
Statutory authority: Wis. Stats. ss. 227.11 (2) and 440.88 (3), which was created as Wis. Stats. s. 440.75 by
2005 Wisconsin Act 25, section
9421 (10q) and renumbered by the revisor under Wis. Stats. s. 13.93 (1) (b).
Explanation of agency authority: The Department of Regulation and Licensing has the authority under Wis. Stat. § 440.88 (3), which was created as Wis. Stat. § 440.75 by
2005 Wisconsin Act 25, section
9421 (10q) and renumbered by the revisor under Wis. Stat. § 13.93 (1) (b), to create rules for the transfer of credentialing authority of substance abuse counselors, clinical supervisors and prevention specialists to the Department from the Department of Health and Family Services.
Related statute or rule: Subchapter VII of chapter 440, Stats.
Plain language analysis: The purpose of this emergency rule is to create a code of conduct to facilitate assumption of disciplinary proceedings as part of the transfer of the regulation of substance abuse professionals from the Department of Health and Family Services to the Department of Regulation and Licensing. The emergency rule also sets forth the requirements for renewal.
The Department of Regulation and Licensing must promulgate this emergency rule for the period before the effective date of the permanent rules as promulgated under Wis. Stat. §
440.88 (3). Under the previous regulatory scheme, the Department of Health and Family Services and the Wisconsin Certification Board had established a code of conduct and restrictions on late renewals. This emergency rule continues the applicability of the rules until the department, with the advice of the Advisory Committee, can establish permanent rules.
Summary of, and comparison with, existing or federal regulation: There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
Summary of factual data and analytical methodologies: The profession of substance abuse treatment providers had previously been regulated by the Department of Health and Family Services through a delegation to the Wisconsin Certification Board. A code of conduct and rules for renewal existed under that regulatory scheme. This emergency rule merely continues that regulatory scheme until the department can promulgate permanent rules under the advice of the advisory committee as contemplated by
2005 Wisconsin Act 25.
Fiscal Estimate
These rules implement the regulation of substance abuse professionals as enacted by
2005 Wisconsin Act 25. These rules neither increase the department's revenues or expenditures beyond those required by
2005 Wisconsin Act 25. These rules do not appear to have any impact on local government costs.
Anticipated costs incurred by private sector: The department finds that this rule has no significant fiscal effect on the private sector.
Effect on small business: These proposed rules will have no significant economic impact on small businesses, as defined in Wis. Stat. §
227.114 (1). This rule does not create any new or different restrictions on substance abuse counselors practicing in a small business setting. Such counselors previously were required to comply with a code of conduct substantially similar in content and were subject to a restriction on late renewal of credentials. This rule maintains that oversight during the transfer of regulation to the Department of Regulation and Licensing without adding new or additional restrictions.
Notice of Hearing
Transportation
NOTICE IS HEREBY GIVEN that pursuant to s.
343.055 (5), Stats., and interpreting s.
343.055, Stats., the Department of Transportation will hold a public hearing in Room 144-B of the Hill Farms State Transportation Building, 4802 Sheboygan Avenue, Madison, Wisconsin on the
29th day of June, 2006, at 1:00 PM, to consider the amendment of provisions of ch.
Trans 102, Wisconsin Administrative Code, that are related to CDL exemptions.
An interpreter for the hearing impaired will be available on request for this hearing. Please make reservations for a hearing interpreter at least 10 days prior to the hearing.
Parking for persons with disabilities and an accessible entrance are available on the south side of the Hill Farms State Transportation Building.
Analysis Prepared by the Wisconsin Department of Transportation
Statutes interpreted: s.
343.055, Stats.
Explanation of agency authority: Section
343.055 (5) requires the Department to issue administrative rules implementing all federal CDL waivers.
Plain language analysis: Sections
343.055, Stats., and ss.
Trans 102.20 and
102.20, .22 and .23 implement a number of CDL waivers states are permitted to grant to drivers of certain commercial motor vehicles. These waivers were originally permitted under various “waivers" which were published in the Federal Register. The USDOT later codified these waivers in the Code of Federal Regulations and slightly changed some of them in that process. This proposed rule would implement the subtle changes created when the USDOT codified the regulations now found at
49 C.F.R. 383.3.
Section
343.055 (5), Stats., requires the Department to issue administrative rules addressing all federal CDL waivers.
1.
Firefighters and Emergency Responders. Section
343.055 (1) (b), Stats., currently exempts firefighters from all state CDL licensing requirements while they operate specific commercial motor vehicles (fire trucks, hook and ladder trucks and foam or water transporters). They must be employed by a volunteer or paid fire fighting organization and the person is operating emergency or fire fighting equipment necessary to the preservation of life or property or the execution of emergency management functions and equipped with a siren and warning lights and the operation is in the routine performance of other duties of the fire organization.
Section
49 C.F.R. 383.3(d)(2) permits states to exempt firefighters and other persons who operate CMVs, which are necessary to the preservation of life or property or the execution of emergency governmental functions. The federal rule allows additional CMVs to be operated without a CDL, including fire trucks, hook and ladder trucks, foam or water transport trucks, police SWAT team vehicles, ambulances, or other vehicles that are used in response to emergencies. This rule making will grant an exemption from CDL requirements that is consistent with federal law.
2.
Seasonal Farm Service Workers. Section
Trans 102.20 (8) (f), Wis. Admin. Code, is amended to conform to the codified requirements of
49 CFR 383.3(f)(3)(vii) with regard to the CDL exemption for certain farm service workers. Federal law now requires the 150-mile limit to be measured from the farm being serviced instead of from the worker's place of employment. This rule change adopts that requirement.
3.
Farmers. 49 CFR 383.3(d)(1) permits persons, such as family members, to qualify as CDL exempt farmers who were not exempted under the original federal waiver or current s.
343.055 (1) (c), Stats. This rule making creates s.
Trans 102.20 (5) to implement the looser federal requirements and to permit family members to drive CMVs if they meet federal requirements for exemption from CDL requirements. Federal law does not define the extent of a farmer's “family" for purposes of the farmer exemption. This leaves persons who are related but are outside of a farmer's immediate family unsure as to whether they do or do not qualify for the farmer exemption. This rule making clarifies that most relatives and their spouses will qualify for the exemption. The proposed rule would allow any parent, grandparent, child, aunt, uncle, brother, sister, grandchild, nephew, niece, first cousin, legal guardian, step-parent, step-child, step-brother, step-sister, or their spouses to qualify as part of the farmer's family.
4.
Snowplow Operators. The current provisions of s.
Trans 102.22 are moved into amended s.
Trans 102.23, in order to consolidate the complete CDL waiver provisions into one section of the code. The odd restricted license provisions available to farm service workers remain segregated into their own regulatory provision, s.
Trans 102.20. No substantive changes are intended in consolidating the regulation. Some language changes occurred simply to make the provision consistent in drafting style with the other subsections of s.
Trans 102.23.
5.
Pyrotechnics Industry Seasonal 4th of July Waiver. USDOT allows states to exempt drivers hauling large, less than 500 pounds of Class 1.3G, explosives (fireworks) from some licensing requirements between June 30 and July 6 of any year. The drivers must meet various qualifications and DMV then must issue special restricted CDL licenses to such drivers. DMV has had no requests to issue such licenses and has concerns about the safety aspects of issuing CDL licenses to haul explosives to drivers who have not been trained or tested with regard to such shipping. Implementing this license type would be expensive, and DMV does not believe many drivers would qualify or seek this type of license. Therefore, DMV is not proposing to implement the pyrotechnics waiver permitted under
49 CFR 383.3(g). (None of Wisconsin's adjoining states have implemented this waiver, either.)
Summary of, and preliminary comparison with, existing or proposed federal regulation: Section
49 CFR 383.3 permits states to exempt firefighters and others operating commercial motor vehicles from CDL requirements for the preservation of life or property or the execution of emergency governmental functions and the operation is not limited to the response or return from a fire or other emergency or the routine performance of other duties of the fire organization. It also permits farmers and their families to operate CMVs without CDLs, permits seasonal farm service workers to obtain limited CDLs without testing, permits snowplow operators from small communities to operate CMVs for snowplowing purposes in emergencies without CDLs, and permits some fireworks haulers to operate without CDLs around the 4
th of July. This proposed rule making brings Wisconsin's CDL exemptions more closely into parallel with those permitted by federal law, except that it does not implement the limited pyrotechnics waiver.
Comparison with Rules in Adjacent States: All adjacent states and Washington D.C. have CDL exemptions for firefighters and emergency responders, farmers, and military members similar to those proposed in this regulation. The states are inconsistent with respect to other waivers; some have implemented them, others not. The waivers for the neighboring states and their particular requirements are discussed below by state and subject area.
Illinois
RV Operators. Drivers of recreational vehicles operated primarily for personal use are exempt from CDL requirements. [625 ILCS 5/6-500(6)(b)(i)]
Military. United States Department of Defense vehicles being operated by non-civilian personnel are exempt from CDL requirements. This includes any operator on active military duty, members of the Reserves, National Guard, personnel on part-time training, and National Guard military technicians (civilians who are required to wear military uniforms and are subject to the Code of Military Justice) [625 ILCS 5/6-500(6)(b)(ii)]
Fire/Emergency. Drivers of firefighting and other emergency equipment with audible and visual signals, owned or operated by or for a governmental entity, which is necessary to the preservation of life or property or the execution of emergency governmental functions which are normally not subject to general traffic rules and regulations are exempt from CDL requirements. [625 ILCS 5/6-500(6)(b)(iii)]
Farmer. The driver of any motor vehicle controlled or operated by or for a farmer is waived from CDL licensing requirements when the motor vehicle being used is transporting agricultural products, implements of husbandry, or farm supplies within 150 air miles from the originating farm. However, for those drivers of any truck-tractor semitrailer combination or combinations, the waiver applies only when the driver is a farmer or a member of the farmer's family and the driver is 21 years of age or more and has successfully completed any tests the Secretary of State deems necessary. A farmer or a member of the farmer's family who operates a truck-tractor semitrailer combination or combinations pursuant to the waiver is granted all of the rights and shall be subject to all of the duties and restrictions of the law applicable to the driver who possesses a commercial driver's license issued under Illinois law, with minor exceptions. For purposes of the Illinois farmer waiver, a person must be a natural or in-law spouse, child, parent, or sibling to be considered a member of the farmer's family. [625 ILCS 5/6-507(c)]
Emergency Snow Removal. An employee of a township or road district with a population of less than 3,000 operating a vehicle within the boundaries of the township or road district for the purpose of removing snow or ice from a roadway by plowing, sanding, or salting is exempt from CDL requirements when the employee is needed to operate the vehicle because the employee of the township or road district who ordinarily operates the vehicle and who has a commercial driver's license is unable to operate the vehicle or is in need of additional assistance due to a snow emergency. [625 ILCS 5/6-507(c)(5)]
Farm Service Seasonal Employees. Illinois provides limited licenses to farm-related service industries consistent with federal guidelines. The restricted license shall be available for a seasonal period or periods not to exceed a total of 180 days in any 12-month period. [625 ILCS 5/6-521(b); Title 92, s. 103096, Illinois Admin. Code]
Temporary Pyrotechnics Waiver. Illinois has not implemented any pyrotechnics waiver.
Iowa
Farmers. A farmer or a person working for a farmer while operating a commercial motor vehicle owned by the farmer within 150 air miles of the farmer's farm to transport the farmer's own agricultural products, farm machinery, or farm supplies to or from the farm is exempt from CDL requirements. The exemption applies to farmers who assist each other through an exchange of services and shall include operation of a commercial motor vehicle between the farms of the farmers who are exchanging services. [IA Stats s.
321.176A]
Firefighters. A fire fighter while operating a fire vehicle for a volunteer or paid fire organization or a peace officer, while operating a commercial motor vehicle for a law enforcement agency, under conditions necessary to preserve life or property or to execute related governmental functions is exempt from CDL requirements. [IA Stats s.
321.176A]
Military. The following persons are exempt from CDL requirements when operating commercial motor vehicles for military purposes:
Active duty military personnel.
Members of the military reserves.
Members of the national guard on active duty, including personnel on full-time national guard duty, personnel on part-time national guard training, and national guard military technicians.
Active duty United States coast guard personnel. [IA Stats s.
321.176A]
RV Operators. A person while operating a motor home solely for personal or family use is exempt from CDL requirements. The law also exempts 5
th Wheel Trailer operators if the motor vehicle has a gross vehicle weight rating of less than 26,001 pounds and the travel trailer or fifth-wheel travel trailer is towed solely for personal or family use. [IA Stats s.
321.176A]
Farm Service Industry Drivers. Iowa Statute 321.176B permits the Iowa DOT to exempt Farm Service Industry Drivers by rule. There are a number of restrictions and requirements to qualify for this restricted license. [s. 761—607.49, IA Admin Code]
A home care aide operating a motor vehicle in the course of the home care aide's duties.
Snow Emergency Drivers. Iowa does not appear to have implemented the federal waiver for emergency snow plow operations in small municipalities.
Temporary Pyrotechnics Haulers. Iowa has not implemented any pyrotechnics waiver.
Minnesota
RV Operators. Persons operating a qualifying recreational vehicle may do so with a Class D license and are not required to hold a CDL. To qualify, a recreational vehicle must be a travel trailer (including those that telescope or fold down), chassis-mounted camper, motor home, tent trailer, or converted bus that provides temporary human living quarters. In addition, the vehicle may not be used as the residence of the owner or occupant, must be used while engaged in recreational or vacation activities; and must be either self-propelled or towed on the highways incidental to the recreational or vacation activities. [ss.
169.01 subd. 25,
171.02 subd.
2. (c) (3), MN Stats.]
Military. A person in the employ or service of the United States federal government is exempt from CDL requirements while driving or operating for military purposes a commercial motor vehicle owned by or leased to the United States federal government if the person is: (1) on active duty in the U. S. Coast Guard; (2) on active duty in a branch of the U. S. Armed Forces, which includes the Army, Air Force, Navy, and Marine Corps; (3) a member of a reserve component of the U. S. Armed Forces; or (4) on active duty in the Army National Guard or Air National Guard, which includes (i) a member on full-time National Guard duty, (ii) a member undergoing part-time National Guard training, and (iii) a National Guard military technician, who is a civilian required to wear a military uniform. The exemption does not apply to a U. S. Armed Forces Reserve technician. [171.03(b), MN Stats.]
Fire/Emergency. Persons operating authorized emergency vehicles can do so on a Class D license and are not required to have a CDL. Vehicles included are:
A vehicle of a fire department;
A publicly owned police vehicle or a privately owned vehicle used by a police officer for police work under agreement, express or implied, with the local authority to which the officer is responsible;
A vehicle of a licensed land emergency ambulance service, whether publicly or privately owned;
1 This exemption appears to violate federal law requirements.
An emergency vehicle of a municipal department or a public service corporation, approved by the commissioner of public safety or the chief of police of a municipality;
A qualified volunteer rescue squad;
A vehicle designated as an authorized emergency vehicle upon a finding by the commissioner of public safety that designation of that vehicle is necessary to the preservation of life or property or to the execution of emergency governmental functions. [ss.
169.01 subd. 5,
171.02 subd.
2.(c)(2), MN Stats.]
Farmer. Persons operating farm trucks do not need a CDL if the farm truck is:
Controlled and operated by a farmer, including operation by an immediate family member or an employee of the farmer;
Used to transport agricultural products, farm machinery, or farm supplies, including hazardous materials, to or from a farm;
Not used in the operations of a common or contract motor carrier as governed by Code of Federal Regulations, Title 49, Part 365; and
Used within 150 miles of the farm. [171.02 subd. 2.(c)(1), MN Stats.]
Emergency Snow Removal. A person who operates a commercial motor vehicle for the purpose of removing snow or ice from a roadway by plowing, salting, or sanding is not required to hold a commercial driver's license if the person: (1) is an employee of a local unit of government with a population of 3,000 or less; (2) is operating within the boundaries of the local unit of government; (3) holds a valid class D driver's license; and (4) except in the event of a lawful strike, is temporarily replacing the employee who normally operates the vehicle but either is unable to operate the vehicle or is in need of additional assistance due to a snow emergency as determined by the local unit of government. [171.02 subd. 5, MN Stats.]
Farm Service Seasonal Employees. Minnesota does not appear to have adopted this exemption. Minnesota does have a restricted farm license for drivers 15 years of age who do not hold regular licenses and who drive farm vehicles in the course of working for their parents.
Temporary Pyrotechnics Haulers. Minnesota has not implemented any pyrotechnics waiver.
Michigan
