Summary and Preliminary Comparison of Any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
N/A.
Contact Person
Kathleen Pakes, Legal Counsel, State Public Defender, (608) 261-0633.
Revenue
This scope statement was approved by the governor on August 16, 2011.
Rule No.
Relating to
Requirements for fermented malt beverage wholesalers' permits and authorized activities for persons holding wholesalers' and brewers' permits.
Description of the Objective of the Rule
The objective of the proposed rule changes is to administer the provisions of ss.
125.28 (5) (e) and
125.29 (3), Stats., as created by
2011 Wisconsin Act 32, and reflect revisions made by the Act to the authorized activities of persons holding wholesalers' and brewers' permits.
Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
Existing policies are as set forth in the rules. No new policies are being proposed, other than to reflect law changes. If the rules are not changed, they will be incorrect in that they will not reflect current law or current Department policy.
Section
125.28 (5) (e), Stats., as created by
2011 Wisconsin Act 32, requires the Department to promulgate rules to administer and enforce the requirements for fermented malt beverage wholesaler's permits under the Act. In addition, Act 32 converted the wholesaler's license issued by a local municipality to a statewide permit issued by the Department of Revenue and revised the authorized activities for wholesalers and brewers. These law changes must be reflected appropriately in Chapter
Tax 7.
Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section
125.03, Stats., provides “[t]he department, in furtherance of effective control, may promulgate rules consistent with this chapter and ch.
139."
Section
125.28 (5) (e), Stats., as created by
2011 Wisconsin Act 32, provides “[t]he department shall promulgate rules to administer and enforce the requirements under this subsection. The rules shall ensure coordination between the department's issuance and renewal of permits under this section and its enforcement of the requirements of this subsection, and shall require that all applications for issuance or renewal of permits under this section be processed by department personnel generally familiar with activities of fermented malt beverages wholesalers. The department shall establish by rule minimum requirements for warehouse facilities on premises described in permits issued under this section and for periodic site inspections by the department of such warehouse facilities."
Section
227.24 (1) (a), Stats., provides “[a]n agency may promulgate a rule as an emergency rule without complying with the notice, hearing and publication requirements under this chapter if preservation of the public peace, health, safety or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures."
Estimate of the Amount of Time that State Employees will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
The department estimates it will take approximately 175 hours to develop the emergency and proposed permanent rule orders.
Description of All Entities that May be Impacted by the Rule
Municipal fermented malt beverage wholesaler licensees and retailer licensees, holders of brewer, brewpub and out-of-state shippers' permits, and all cities, villages, and towns issuing fermented malt beverage licenses.
Summary and Preliminary Comparison of Any Existing or Proposed Federal Regulation that Is Intended to Address the Activities to be Regulated by the Rule
The Federal Alcohol Administration Act, Title 27 United States Code, contains provisions regarding the qualification and operation of alternating proprietors at breweries and contract brewing arrangements as regulated by the U.S. Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau (TTB). The department's emergency and proposed rule orders will be influenced by these regulations, but will not interfere with or duplicate them.
Contact Person
Dale Kleven (608) 266-8253.
Transportation
This statement of scope was approved by the governor Scope on August 18, 2011.
Subject
Revises Chapter
Trans 327, relating to motor carrier safety.
Description of the Objective of the Rule
The federal regulations at
49 CFR 383 and
391 were revised by “Medical Certification Requirements as Part of the CDL", 73 FR 73096 (Dec. 1, 2008; RIN 2126-AA10). This rule implements new federal requirements for commercial drivers obtaining and submitting medical certificates conformity with those federal regulations. Section
343.065 (3) of the statutes, created
2011 Wisconsin Act 32, requires the department to downgrade commercial drivers licenses of drivers who fail to provide federally mandated medical certifications, and to promulgate rules defining this downgrade process.
This rule-making will allow the department to:
•
define the procedures for drivers to certify their driving type (Tier) to the department;
•
create the process for downgrading a license and reinstating a license after the downgrade has occurred; and
•
describe the types of notifications drivers and employers will receive prior to the federal medical card expiration; when the driver is downgraded; and when the driver is reinstated.
Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
Starting in January 2012, all original and renewal applicants for a commercial driver's license must certify their driving type (Tier). Drivers operating in interstate commerce who are not subject to the exceptions identified (Tier 1) also must furnish a copy of their federal medical certificate (sometimes called a “Fed Med card") to the department. The department must electronically capture the information on the federal medical certificate, and retain a copy of the federal medical certificate on file.
In January 2014, ALL persons in Wisconsin that hold a commercial driver's license (CDL) will be required to comply with these requirements as well. The department will downgrade drivers that fail to comply with these requirements in accordance with the procedures defined below.
These federal regulations, as well as s.
343.065 (3), stats., require the department to downgrade a driver's commercial driving privileges if the driver is operating in non-excepted interstate commerce (Tier 1) and fails to submit a federal medical certificate or to keep his or her federal medical certificate current.
Several alternatives exist to implementing these new regulations for allowing drivers to certify their driving type as well as the downgrade process.
Alternatives for Commercial Drivers to Certify Driving Type:
1. Require all drivers subject to these requirements to visit a DMV field service station to select their Tier of driving and provide proof of their federal medical certificate.
This approach is cumbersome, and will not work for Wisconsin drivers who are currently out of state.
2. Require all drivers to certify their driving type and provide federal medical certificate information electronically to DMV.
This approach will not work for drivers with limited access to computers and the Internet.
3. Create a hybrid system that allows drivers to choose to certify and provide federal medical documentation electronically, or to certify and present the federal medical certificate in person at a DMV field station.
This approach will allow drivers and their employers' flexibility to provide this information. As such, the department will pursue this approach.
Alternatives for Downgrade Process:
In addition, the federal regulations offer several alternatives for downgrading a CDL for drivers that are operating in interstate, non-excepted commerce (Tier 1). Note: this downgrade does not apply to drivers in the other Tiers and they are NOT required to provide updated federal medical information to the department.
1. Change the driver's certification of their driving type to operating exclusively in interstate, excepted commerce (Tier 2), intrastate commerce (Tier 3) or intrastate, excepted commerce (Tier 4).
Drivers operating in interstate, excepted commerce or any type of intrastate commerce must have special restrictions printed on their CDL. As such, if the department pursued this alternative, we would have to re-issue the CDL every time a Tier 1 driver was downgraded. To remove the downgrade, drivers would have to visit a DMV field station, provide their federal medical certificate, and pay a fee for a duplicate license. This will be cumbersome and difficult for Wisconsin CDL drivers who are currently out of state. This approach would also require considerable staff resources and potential delays for drivers, since DMV field stations are not open seven days a week.
2. Remove the CDL privileges from the driver's license.
The CDL privileges will be removed from the driver's license using a “voluntary temporary surrender" (VTS), which will appear on the electronic record only. The driver's commercial classes and endorsements will remain printed on the license document, but they will not be able to legally operate in interstate commerce until a copy of an updated federal medical certificate is provided to the department.
While this alternative may seem unduly burdensome, it is actually much easier for the driver to get their privileges back. They (or their employer) can submit their federal medical certificate to the department either in person or electronically via our secure web system.
In addition, the drivers retain their current driver's licenses, and will not be required to pay a fee to regain their commercial operating privileges. The department will pursue this approach for downgrading.
Other policy items:
The department plans to use the VTS process for commercial drivers who may be revoked, suspended, or disqualified for other reasons. The VTS allows us to track the federal medical requirements as well as the underlying reason for the suspension, revocation, or disqualification.
In accordance with federal regulations, the department will notify Tier 1 commercial drivers 60 days prior to the expiration of their federal medical certificate. If we do not receive an updated federal medical certificate, the driver will be downgraded ten days after the expiration of the current federal medical certificate, using the VTS process described above. The driver will receive notification of this action.
The department also plans to use our Employer Notification system to provide up-to-date information to employers about each of their drivers' selected Tier of operation and current status of their federal medical certificates.
This rule-making also addresses the licensing action that will be taken for drivers who present fraudulent federal medical cards. The department will cancel these licenses, which is the same action taken on a driver who presents fraudulent information for a regular, Class D license.
Statutory authority for the rule (including the statutory citation and language)
2011 Wisconsin Act 32 (the biennial budget bill) created s.
343.065 (1) (a) which gives the department authority to downgrade a commercial driver license if a federal medical certificate is not on file.
In addition, s.
343.065 (1) (b) requires the department to promulgate rules to define the process for downgrading a license in accordance with federal law and regulations. This paragraph also directs the rule-making to include whether or not a new commercial driver license document will be issued after the downgrade, and establish a process for reinstating a downgraded license after appropriate medical certification is received.
Estimate of the Amount of Time that State Employees will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
It is estimated this rule will take approximately 250 hours to develop. Other resources necessary to successfully implement the rule include computer programming resources and an outreach campaign to affected commercial drivers and other interested stakeholders.
Description of All Entities that may be Impacted by the Rule
This rule will affect all Wisconsin drivers who currently hold a Commercial Driver License (CDL). As of December 2010, there were 289,596 persons holding commercial drivers licenses, of which 224,860 were valid (not withdrawn or expired). It will also impact motor carrier companies, employers of commercial drivers, law enforcement, other state driver licensing agencies, and the Federal Motor Carrier Safety Administration.
Summary and Preliminary Comparison of Any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
This rulemaking is intended to ensure Wisconsin's compliance with new federal regulations in
49 CFR Part 383 and
391, requiring drivers of commercial motor vehicles to certify their type of driving to the department and submit a copy of their federal medical certificate to the department.
All states are required to comply with these new regulations.
Contact Person
Erin Egan (608) 266-9901.
