Wisconsin Legislature: 490B Register (10/31/1996)

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Wisconsin

Administrative

No. 490

Publication Date: October 31, 1996

Effective Date: November 1, 1996

Revisor of Statutes Bureau

Suite 800, 131 West Wilson Street

Madison, Wisconsin 53703-3233

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T a b l e o f C o n t e n t s

Emergency Rules Now In Effect.	Pages 5 to 15.
Agriculture, Trade & Consumer Protection:	Rules relating to animal health. Rule adopted creating s. ATCP 139.04 (11), relating to prohibiting certain gaseous hydrocarbons in mobile air conditioners. [FIRST APPEARANCE]
Corrections:	Rule relating to inmate mail.
Health & Family Services:	Community Services, Chs. HSS 30-- Rules relating to administration of child care funds. Rules relating to child care providers certification. Rule relating to child care funds and copayments.
Health & Family Services:	Medical Assistance, Chs. HSS 100-- Rules relating to coverage of school-based medical services.
Health & Family Services:	Health, Chs. HSS 110-- Rules relating to permit fees. Rules relating to public swimming pools. Rules relating to fees.
Health & Family Services (Workforce Development):	Economic Support, Chs. HSS 200-- Rules relating to time limits on benefits for AFDC recipients in the Job Opportunities and Basic Skills (JOBS) program.
Industry, Labor & Human Relations (Commerce):	Uniform Dwellings, Chs. ILHR 20-25 Rules relating to dwellings constructed in flood hazard zones.
Industry, Labor & Human Relations (Commerce):	Building & Heating, etc., Chs. ILHR 50-64 Multi-Family Dwelling, Ch. ILHR 66 Rules delaying energy efficiency revision to chs. ILHR 50-64 and 66.
Industry, Labor & Human Relations (Workforce Development):	Labor Standards, Chs. ILHR 270-279 Rules relating to the minimum wage.
Insurance, Commissioner of:	Rules relating to premium rates for the Health Insurance Risk-Sharing Plan (HIRSP).
Natural Resources:	Fish, Game, etc., Chs. NR 1- Rules relating to size and bag limits for Lac du Flambeau reservation. Rules relating to the 1996 deer hunting season. Rules relating to fishing for yellow perch in Lake Michigan. Rules relating to the 1996 deer hunting season. Rules relating to the 1996 migratory game bird season. Rules relating to fishing for yellow perch in Lake Michigan.
Public Instruction:	Rules relating to dispute resolution concerning children with exceptional educational needs (EEN). Rules relating to the handicapping condition of significant developmental delay.
Securities (Financial Institutions):	Rules relating to alternative accounting guidelines for certain financial statements.
Transportation:	Rules relating to transportation of garbage or refuse permits.

Scope Statements.	Pages 17 to 18.
Chiropractic Examining Board:	Chir Code - Relating to continuing education requirements for chiropractors and approval of chiropractic continuing education sponsors and programs.
Commerce:	Ch. ILHR 27 - Relating to pier installation for manufactured homes.
Transportation:	Ch. Trans 76 - Relating to local transportation aids.
Workforce Development:	Ch. DWD 272 - Relating to the minimum wage.

Notice of Submittal of Proposed Rules to Wisconsin Legislative Council Rules Clearinghouse.	Pages 19 to 20.
Agriculture, Trade and Consumer Protection:	Ch. ATCP 143 - Relating to the corn marketing order.
Corrections:	S. DOC 313.025 - Relating to defining the meaning of “prison industry” as used in s. 303.01 (1) (c), Stats.
Hearing and Speech Examining Board:	SS. HAS 4.03, 5.02, 6.02, 6.065 and 6.09 - Relating to calibration of audiometric equipment and the use of support personnel.
Medical Examining Board:	Ch. Med 13 (title), and ss. Med 13.01, 13.02, 13.03, 13.04, 13.05 and 13.06 - Relating to continuing medical education for podiatrists.
Natural Resources:	Chs. NR 10 and 11 - Relating to sharp-tailed grouse hunting.
Natural Resources:	Chs. NR 25 - Relating to commercial fishing for chubs and whitefish in Lake Michigan and Green Bay.

Notice Section.	Pages 21 to 25.
Agriculture, Trade and Consumer Protection:	Hearing to consider s. ATCP 139.04 (11) created as an emergency rule, relating to prohibiting certain flammable refrigerants for use in mobile air conditioning systems. Hearings to consider revision of ch. ATCP 143, relating to the corn marketing order.
Natural Resources:	Fish, Game, etc., Chs. NR 1-- Hearings to consider revision to ss. NR 10.01, 10.26 and 11.08, relating to sharp-tailed grouse hunting. Hearing to consider an emergency rule, relating to commercial fishing for yellow perch in Lake Michigan. Hearing to consider revision to ch. NR 25, relating to commercial fishing for whitefish and chubs in Green Bay and Lake Michigan.
Natural Resources:	Environmental Protection--Air Pollution Control, Chs. NR 400-- Environmental Protection--Solid and Hazardous Waste, Chs. NR 500-- Environmental Protection--Investigation and Remediation of Environmental Contamination, Chs. NR 700-- Hearings to consider revision to chs. NR 419, 518 and 718, relating to remediation of soil contamination through landspreading.

Notice of Submission of Proposed Rules to the Presiding Officer of each House of the Legislature, Under S. 227.19, Stats.	Page 26.
Commerce:	(CR 95-69) - Ch. ILHR 202
Commerce:	(CR 96-63) - Chs. ILHR 82 and 84
Commerce:	(CR 96-100) - Chs. ILHR 20 and 21
Health and Family Services:	(CR 96-93) - SS. HSS 172.04, 175.04, 178.05, 195.04, 196.04, 197.04 and 198.04
Health and Family Services:	(CR 96-119) - SS. HSS 172.03 and 172.05
Natural Resources:	(CR 96-85) - Chs. NR 19, 21 and 22
Natural Resources:	(CR 96-112) - SS. NR 20.03, 20.036, 20.13 and 20.18
Natural Resources:	(CR 96-114) - SS. NR 20.02 and 25.05
Natural Resources:	(CR 96-116) - S. NR 20.08
Psychology Examining Board:	(CR 96-123) - SS. Psy 2.01, 2.015, 2.05 and 3.01
Public Instruction:	(CR 96-111) - SS. PI 11.02 (23) and 11.35
Public Instruction:	(CR 96-121) - Ch. PI 11
Securities, Commissioner of [Financial Institutions]:	(CR 96-143) - Chs. SEC 2, 3, 4, 5, 32, 33, 35 & 37 and ss. SEC 7.06, 9.01, 31.01 &34.01
Transportation:	(CR 96-70) - S. Trans 139.05 (8)

Administrative Rules Filed With the Revisor of Statutes Bureau.	Page 27.
Agriculture, Trade & Consumer Protection:	(CR 96-2) - S. ATCP 3.02 and ch. ATCP 50
Natural Resources:	(CR 96-23) - SS. NR 20.015, 20.03 and 21.04
Regulation and Licensing:	(CR 96-33) - S. RL 120.02 (intro.) and ch. RL 128
Social Workers, Marriage & Family Therapists and Professional Counselors Examining Board:	(CR 96-34) - SS. SFC 2.01 (5) and 3.13

Rules Published in this Wis Adm. Register.	Page 28.
Agriculture, Trade & Consumer Protection:	(CR 95-97) - Chs. ATCP 88 and 89
Architects, Landscape Architects, Professional Geologists, Professional Engineers, Designers and Land Surveyors Examining Board:	(CR 96-49) - SS. A-E 3.05, 4.08, 5.04, 6.05, 9.05 and 10.05
Barbering and Cosmetology Examining Board:	(CR 96-1) - S. BC 3.03 (5)
Commerce:	(CR 95-228) - Chs. ILHR 2, 5, 7, 9, 10, 11, 17, 20, 26, 34, 41, 42, 45, 48, 50, 51, 66, 68, 74 & 81 and ss. ILHR 18.13, 27.20, 53.53, 67.07 & 82.21
Medical Examining Board:	(CR 96-47) - Ch. Med 8
Natural Resources:	(CR 95-99) - S. NR 46.30 (2) (a) to (c)
Natural Resources:	(CR 96-18) - Chs. NR 140, 724 & 726 and ss. NR 700.03 & 722.07
Nursing, Board of:	(CR 95-187) - S. N 8.08
Revenue:	(CR 96-53) - S. Tax 11.69
Revenue:	(CR 96-56) - S. Tax 2.47
Savings Institutions, Division of [Financial Institutions]:	(CR 96-64) - S. SB 3.06 (1) (e)
Savings Institutions, Division of [Financial Institutions]:	(CR 96-66) - S. SB 3.08 (4) (e)
Transportation:	(CR 96-110) - S. Trans 102.22
Workforce Development:	(CR 96-36) - Chs. HSS 201 and 206

Final Regulatory Flexibility Analyses.	Pages 29 to 31.
1. Agriculture, Trade & Consumer Protection:	(CR 95-97) - Chs. ATCP 88 and 89
2. Architects, Landscape Architects, Professional Geologists, Professional Engineers, Designers and Land Surveyors Examining Board:	(CR 96-49) - SS. A-E 3.05, 4.08, 5.04, 6.05, 9.05 and 10.05
3. Barbering and Cosmetology Examining Board:	(CR 96-1) - S. BC 3.03 (5)
4. Commerce:	(CR 95-228) - Chs. ILHR 2, 5, 7, 9, 10, 11, 17, 20, 26, 34, 41, 42, 45, 48, 50, 51, 66, 68, 74 & 81 and ss. ILHR 18.13, 27.20, 53.53, 67.07 & 82.21
5. Medical Examining Board:	(CR 96-47) - Ch. Med 8
6. Natural Resources:	(CR 96-18) - Chs. NR 140, 724 & 726 and ss. NR 700.03 & 722.07
7. Natural Resources:	(CR 96-84) - Ch. NR 46
8. Nursing, Board of:	(CR 95-187) - S. N 8.08
9. Revenue:	(CR 96-53) - S. Tax 11.69
10. Revenue:	(CR 96-56) - S. Tax 2.47
11. Savings Institutions, Division of [Financial Institutions]:	(CR 96-64) - S. SB 3.06 (1) (e)
12. Savings Institutions, Division of [Financial Institutions]:	(CR 96-66) - S. SB 3.08 (4) (e)
13. Transportation:	(CR 96-110) - S. Trans 102.22
14. Workforce Development:	(CR 96-36) - Chs. HSS 201 and 206

Executive Orders.	Page 32.
Executive Order 298.	Relating to a Proclamation that the Flag of the United States and the Flag of the State of Wisconsin be Flown at Half-Staff as a Mark of Respect for the Late Spiro T. Agnew, Former Vice President of the United States.
Executive Order 299.	Relating to the Transfer of the Neurointerventional Angiography Program to the University of Wisconsin Hospitals and Clinics Authority.
Notice of Nonacquiescence.	Page 33.
Revenue:	Tax Appeals Commission Royal Terrace Partnership v. Wis. Dept. of Revenue

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E m e r g e n c y R u l e s N o w I n E f f e c t

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.

EMERGENCY RULES NOW IN EFFECT (2)

Department of Agriculture, Trade & Consumer Protection

1. Rules adopted revising chs. ATCP 10 to 12, relating to animal health.

Finding of Emergency

The state of Wisconsin department of agriculture, trade and consumer protection (“department”) finds that an emergency exists and that an emergency rule is necessary to protect public health, safety and welfare. The facts constituting the emergency are as follows:

(1) 1995 Wis. Act 79 was published December 8, 1995. Under its provisions, no person may keep farm-raised deer in Wisconsin after June 1, 1996, unless that person is registered with the department.

(2) 1995 Wis. Act 79 requires the department to adopt rules which specify the fee for registration. In addition, rules are necessary to establish the mechanism for registration.

(3) Prior to 1995 Wis. Act 79, persons who kept farm-raised deer were required to be licensed by the department of natural resources (DNR). Many persons who keep farm-raised deer will have become licensed with DNR for calendar year 1996. Those licenses will be transferred to the department as registrations.

(4) Permanent rules implementing 1995 Wis. Act 79 will not take effect until on or about January 1, 1997. This emergency rule establishes an interim procedure for registering herds of farm-raised deer, pending the effective date of the permanent rules. Without this emergency rule, no person would be able to start a farm-raised deer herd in Wisconsin between June 1, 1996, and the effective date of the permanent rules, because there would be no way to register that herd.

(5) 1995 Wis. Act 79 also requires animal owners to provide a means of testing those animals for tuberculosis without endangering the animal or the person performing the test. In addition, a non-statutory provision of that Act requires all keepers of farm-raised deer to have the deer tested for tuberculosis between December 8, 1995, and June 30, 1997.

(7) Concerns for the safety of farm-raised deer during testing prohibit testing during significant periods of the year. For example, deer should not be tested during the birthing season, the rut season and the season in which the animals are in velvet. Therefore testing is restricted to periods in late August to early October or during January and February.

(8) The department anticipates that many keepers of farm-raised deer will perform their testing in July, August or September of 1996, before a permanent rule can be adopted. This emergency rule establishes three alternative ways in which the animal owner can insure the safety of the persons doing the testing. This is necessary to insure the safety of the person conducting the test and to permit the keeper of farm-raised deer to know what constitutes adequate restraint of the animals.

(9) In September, 1995, the United States department of agriculture adopted new regulations relating to identification and slaughter shipment of bovines or cervidae which are reactors or suspects for bovine tuberculosis. Wisconsin's current administrative rules are in conflict with the current federal regulations. This emergency rule will make Wisconsin's rules consistent with the federal regulations, so that persons who comply with federal law will not be placed in violation of state law.

(10) In March 1996, the department was advised by the United States department of agriculture that the Russian federation intends to prohibit shipment of poultry meat into the Russian federation from any state which does not require veterinarians to report the presence of specific poultry diseases to the state animal health agency. Wisconsin's current administrative rules do not require reporting of 5 of the diseases which concern the Russian federation.

(11) Wisconsin poultry producers ship poultry meat valued in excess of $1 million per year to the Russian federation. By adopting a provision requiring veterinarians to report the existence of 5 diseases to the department, the department will protect the poultry producers' export market in the Russian federation. The department has proposed a permanent rule requiring reporting of the diseases. This emergency rule protects the export market during the period before the permanent rule is effective.

Publication Date: June 3, 1996

Effective Date: June 3, 1996

Expiration Date: October 31, 1996

2. Rule adopted creating s. ATCP 139.04 (11), relating to prohibiting the sale of butane, propane, mixtures of butane and propane, or other gaseous hydrocarbons for use as refrigerants in mobile air conditioners.

Finding of Emergency

(1) On June 2, 1995, the United States Environmental Protection Agency (“EPA”) issued a final rule prohibiting the use of HC-12a, a hydrocarbon-based refrigerant containing liquified petroleum gas, as a refrigerant in mobile air conditioning systems. EPA prohibited HC-12a, and a predecessor product called OZ-12, because of safety risks associated with the use of flammable refrigerants in mobile air conditioning systems. According to EPA, the manufacturer of HC-12a did not provide adequate information to demonstrate that the product was safe when used in a mobile air conditioning system.

(2) Despite the current EPA rule, at least one company is currently engaged in manufacturing and distributing HC-12a for use in motor vehicle air conditioning systems. The Idaho manufacturer argues that EPA lacks jurisdiction to regulate the sale of its product. HC-12a is currently being offered, distributed or promoted for sale at wholesale and retail outlets in Wisconsin and surrounding states, for use as a refrigerant in mobile air conditioning systems.

(3) HC-12a is a highly flammable substance, as defined by the American Society of Testing and Materials (ASTM) standard test procedure for refrigerants, the American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE), and Underwriter's Laboratories. Use of HC-12a or its predecessor, OZ-12, in mobile air conditioning systems is inconsistent with standards adopted by the Society of Automotive Engineers. According to those standards, refrigerants used in mobile air conditioning systems must be of low toxicity, and must be nonflammable and nonexplosive.

(4) At least 13 states have enacted legislation prohibiting the sale of refrigerants for use in air conditioning or refrigeration systems unless those refrigerants meet flammability standards or are specifically approved for their intended use.

(5) HC-12a and other hydrocarbon-based refrigerants, when sold for use in motor vehicle air conditioning systems, present a serious risk to public health and safety for the following reasons:

(a) Motor vehicles and mobile air conditioning systems are not currently designed to use flammable refrigerants, or to prevent hazards associated with flammable refrigerants.

(b) Refrigerants in mobile air conditioning systems commonly leak into the engine compartments or passenger compartments of motor vehicles. Leaking refrigerant is often routed into the passenger compartment through the air distribution system from the evaporator. Hydrocarbon refrigerants, which are heavier than air, will tend to accumulate in low or confined spaces of a motor vehicle.

(d) Internal components of a motor vehicle provide many potential sources of ignition for flammable refrigerants. Passenger activities, such as smoking, may also create ignition sources.

(e) Fires or explosions resulting from the ignition of leaked flammable refrigerant may cause serious bodily injury or death to motor vehicle passengers. Automotive technicians who test for leaks, or who repair or service mobile air conditioning systems containing flammable refrigerants, are also at risk.

(6) The risk to public health and safety cannot be adequately addressed by product packaging or labeling, for the following reasons:

(a) The use of flammable hydrocarbon-based products in motor vehicle air conditioning systems is inherently hazardous. That hazard will not be materially altered by mere packaging or labeling.