No. 527
Publication Date: November 14, 1999
Effective Date: November 15, 1999
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 3 to 10.
Agriculture, Trade and Consumer Protection:
Rule relating to drug residues in raw milk.
Rules relating to security of dairy plant payments to milk producers.
Commerce:
PECFA Interagency Responsibilities, Ch. Comm 46
Rules adopted creating ch. Comm 46, relating to Petroleum Environmental Cleanup Fund interagency responsibilities. [FIRST APPEARANCE]
Commerce:
Resources for Communities, etc., Chs. Comm 105-128
Rules relating to certified capital companies.
Crime Victims Rights Board:
Rules relating to review of allegations of crime victims rights violations.
Employment Relations Commission:
Rules relating to calculation of minimum qualified economic offers for school district employes.
Geologists, Hydrologists & Soil Scientists Examining Board:
Rules relating to registration and regulation of geologists, hydrologists and soil scientists.
Health & Family Services:
Management, etc., Chs. HFS 1--
Rule relating to caregiver background checks.
Health & Family Services:
Medical Assistance, Chs. HFS 100-108
Rules relating to operation of the BadgerCare health insurance program.
Rule relating to certification of specialized medical vehicle providers.
Health & Family Services:
Health, Chs. HFS 110-
Rules relating to the Health Insurance Risk-Sharing Plan (HIRSP).
Rules relating to distribution of closed nursing home beds to a veterans' nursing home.
Higher Educational Aids Board:
Rules relating to the Minority Teacher Loan Program.
Natural Resources:
Fish, Game, etc., Chs. NR 1-
Rules relating to the 1999 migratory game bird season.
Natural Resources:
Environmental Protection-Water Regulation,
Chs. NR 300-
Rules relating to determination of navigability in farm ditches.
Rules relating to ski jumps and platforms.
Natural Resources:
Environmental Protection-Investigation & Remediation, Chs. NR 700--
Rules relating to sites contaminated with petroleum products from petroleum storage tanks.
Revenue:
Rule relating to sales and use tax treatment of machinery and equipment used in waste reduction and recycling activities.
Scope Statements.
Page 11.
Natural Resources (Fish, Game, etc., Chs. NR 1--):
NR Code - Relating to fishing regulation changes through the (Spring 2000) Fish and Wildlife Hearings.
Psychology Examining Board:
Psy Code - Relating to defining the terms “working day” and “in this state” for the purposes of the temporary practice provision found at s. 455.03, Stats.
Workforce Development (Labor Standards, Chs. DWD 270-279):
SS. DWD 270.085 and 272.086 - Relating to student activities that do not constitute employment.
Notices of Submittal of Proposed Rules to Wisconsin Legislative Council Rules Clearinghouse.
Pages 12 to 13.
Agriculture, Trade and Consumer Protection:
Ch. ATCP 81 - Relating to cheese grading, packaging and labeling.
Crime Victims Rights Board:
Ch. CVRB 1 - Relating to the review of complaints alleging violations of the rights of crime victims.
Psychology Examining Board:
SS. Psy 2.08 and 3.10 - Relating to re-examinations.
Transportation:
Ch. Trans 320 - Relating to calculation of fees for special events, security, traffic enforcement and escort services.
Notices of Hearings or of Proposed Rules.
Pages 14 to 20.
Agriculture, Trade and Consumer Protection:
Hearings to consider revision to ch. ATCP 81, relating to cheese grading, packaging and labeling.
Elections Board:
Proposed amendment to s. El Bd 1.28, relating to advocacy advertisements.
Health and Family Services:
Community Services, Chs. HFS 30--
Hearings to consider the revision of ch. HFS 61 and creation of chs. HFS 32, 33 and 35, relating to standards for mental health inpatient treatment, adult day treatment and clinic programs.
Psychology Examining Board:
Hearing to consider ss. Psy 2.08 and 3.10, relating to re-examinations.
Transportation:
Hearings to consider ch. Trans 320, relating to calculation of fees for special events, security, traffic enforcement and escort services.
Notice of Submission of Proposed Rules to the Presiding Officer of Each House of the Legislature, Under S. 227.19, Stats.
Page 21.
Chiropractic Examining Board:
(CR 98-190) - SS. Chir 4.03 and 6.03
Health and Family Services:
(CR 99-113) - SS. HFS 119.07 and 119.15
Medical Examining Board:
(CR 99-128) - SS. Med 1.06, 1.08, 2.02 and 2.04
Public Service Commission:
(CR 98-172) - Ch. PSC 117
Administrative Rules Filed with the Revisor of Statutes Bureau.
Page 22.
Employment Relations, Dept. of:
(CR 99-110) - Ch. ER 18 and ss. ER 1.02, 29.03
and 29.04
Employment Relations --Merit Recruitment and Selection:
(CR 99-111) - SS. ER-MRS 1.02, 11.03, 16.025, 16.035,
16.04, 22.11 and 34.08
Professional Geologists, Hydrologists and Soil Scientists Examining Board:

(CR 99-88) - Chs. GHSS 1 to 5
Medical Examining Board:
(CR 99-1) - Ch. Med 8
Medical Examining Board:
(CR 99-98) - Chs. Med 6, 13 and 21 and ss. Med 10.02
and 17.02
Natural Resources:
(CR 99-23) - Ch. NR 20 and ss. NR 21.04, 23.05
and 26.26
Natural Resources:
(CR 99-47) - Chs. NR 6, 8, 50 and 64 and s. NR 60.09
Natural Resources:
(CR 99-82) - S. NR 45.10
Natural Resources:
(CR 99-97) - SS. NR 10.01, 10.06, 10.12 and 10.31
Public Notice.
Page 23.
Workforce Development:
Public notice relating to the Temporary Assistance for Needy Families (TANF) caseload reduction credit methodology.
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)
Agriculture, Trade & Consumer Protection
1.   Rules were adopted amending s. ATCP 60.19 (3) and (4), relating to drug residues in raw milk.
Finding of Emergency
The state of Wisconsin department of agriculture, trade and consumer protection (DATCP) finds that an emergency exists and that the following emergency rule is necessary to protect public health, safety and welfare. The facts constituting the emergency are as follows:
(1) Milk from Wisconsin dairy farms may not contain drug residues. Current rules under ch. ATCP 60, Wis. Adm. Code, require every dairy plant operator to perform a drug residue screening test on every bulk load of raw milk received by that operator. If the bulk load tests positive for any drug residue, the operator must test a milk sample from each producer milk shipment included in that bulk load. Current rules do not require a dairy plant operator to perform a confirmatory test if a producer sample tests positive on an initial test.
(2) If a producer sample tests positive for drug residue, the dairy plant operator may hold that producer financially responsible for contaminating the bulk load. In some cases, the cost of a contaminated tanker load of milk may be $5,000 or more. The department may also take enforcement action against the milk producer. Enforcement may result in financial penalties or suspension of the milk producer's license.
(3) In several enforcement actions, producers have argued that dairy plant drug residue tests were inaccurate. Producers claimed that there was no confirmatory testing, and no opportunity to confirm the accuracy of the dairy plant operator's test findings. Inaccurate findings may unfairly penalize affected producers, and result in severe financial losses to those producers. The lack of a confirmatory test aggravates conflicts between dairy plant operators and milk producers.
(4) Confirmatory testing of test-positive producer samples would provide greater assurance of fairness for milk producers, and would help avoid conflicts between dairy plant operators and producers. Dairy plant operators can perform confirmatory tests at reasonable cost. An emergency rule requiring confirmatory testing of producer samples is necessary to protect milk producers, and to promote the efficient operation and economic well-being of Wisconsin's dairy industry.
(5) Confirmatory testing of test-positive producer samples will enhance, and not reduce, the safety of Wisconsin milk supplies. Dairy plant operators will still be required to test bulk tanker loads of milk, and dispose of tanker loads that test positive for drug residues.
(6) This emergency rule will strengthen public health protection by requiring dairy plant operators to dispose of contaminated loads, or denature contaminated loads before transferring them to the custody of another person. Denaturing ensures that persons receiving custody of contaminated loads will not redirect them to human food use.
(7) Pending the adoption of rules according to normal administrative rulemaking procedures, it is necessary to adopt this emergency rule to do both of the following:
(a) Protect the public milk supply against drug residue contamination by assuring proper disposal of contaminated milk.
(b) Provide additional assurance that milk producers will not be subjected to serious penalties or financial losses based on inaccurate drug residue tests.
Publication Date:   April 30, 1999
Effective Date:   April 30, 1999
Expiration Date:   September 27, 1999
Hearing Date:   June 18, 1999
Extension Through:   November 25, 1999
2.   Rules adopted revising s. ATCP 100.45, relating to security of dairy plant payments to milk producers.
Finding of Emergency
(1) Section 100.06, Stats., is designed to provide “reasonable assurance” that dairy farmers will be paid for the milk they produce. Under ss. 97.20(2)(d)2. and l00.06, Stats., a dairy plant must, as a condition to licensing, comply with applicable security requirements under s. 100.06, Stats., and department rules under ch. ATCP 100, Wis. Adm. Code. Since dairy plant licenses expire on April 30 annually, dairy plants must comply with applicable security requirements in order to qualify for license renewal on May 1 of each year.
(2) Under s. 100.06, Stats., and ch. ATCP 100, a dairy plant operator who purchases milk from producers must do one of the following:
(a) File with the department of agriculture, trade and consumer protection (“department”) audited financial statements which show that the operator meets minimum financial standards established by s. 100.06, Stats.
(b) File security with the department in an amount equal to at least 75% of the operator's ”maximum liability to producers,” as calculated under s. ATCP 100.45(5).
(c) Enter into a dairy plant trusteeship under ch. ATCP 100, Subch. V.
(3) Under s. ATCP 100.45(5), a dairy plant operator's “maximum liability to producers” is based on the plant operator's largest monthly purchase of milk during the preceding license year. Milk prices hit all time record highs in 1998, dramatically increasing monthly dairy plant payrolls. Security requirements for the 1999 license year are currently based on these inflated 1998 monthly payrolls, even though 1999 monthly payrolls have dropped dramatically in response to price changes.
(4) Since December 1998, the average market price for raw milk has fallen by approximately 40%. Dairy economists expect BFP average prices to remain at least 12% to 16.2% below last year's average during 1999. Because of the dramatic decline in milk prices, dairy plants have smaller producer payroll obligations than they had in 1998.
(5) Prices received by Wisconsin dairy plants for processed dairy products have also fallen dramatically since December. This has created serious financial hardships for some dairy plants.
(6) Current security requirements, based on 1998 producer prices and payrolls, are excessive in relation to current payroll obligations and impose an added financial burden on dairy plants. Current security requirements under s. ATCP 100.45(5), based on last year's prices, are at least 31 to 48% higher than they would be if calculated at current prices.
(7) Because of the dramatic decline in dairy prices, some dairy plant operators are required to file large amounts of additional security, often amounting to millions of dollars. This is a major expense for affected operators. Operators may find it difficult, financially, to obtain and file the required security. If a dairy plant is unable to file the required security in connection with the May 1, 1999 license renewal, the department will forced to take action against the dairy plant's license. This could result in the forced closing of some unsecured dairy plants. The forced closing of an unsecured plant may, in turn, result in serious financial losses to producer patrons.
(8) By requiring excessive security based on last year's prices, current rules are making it unnecessarily difficult and expensive for dairy plants to obtain and file security. This could contribute to the financial failure of some dairy plants, or to the forced closing of some unsecured plants. Dairy plant financial failures or closings, if they occur, may cause serious and widespread financial injury to milk producers in this state. This constitutes a serious and imminent threat to the public welfare.
(9) In order to reduce the risk of dairy plant financial failures or forced closings, rule amendments are urgently needed to adjust dairy plant security requirements to appropriate levels based on current milk prices. The rule amendments will relieve financially stressed dairy plants from unnecessary financial burdens and will make it easier for those dairy plants to file security with the department. That, in turn, will reduce the risk of dairy plant financial failures, or the forced closing of unsecured plants, which may adversely affect milk producers.
(10) Rule amendments, to be effective, must be promulgated prior to the dairy plant license year beginning May 1, 1999. That is not possible under normal rulemaking procedures. Therefore, the following emergency rule is needed to protect the public welfare.
(11) Should milk prices rise beyond the levels currently anticipated for the license year beginning May 1, 1999, so that security filed under this emergency rule is less than 75% of a dairy plant operator's current monthly producer payroll, the operator is required to notify the department of that fact under s. 100.06, Stats., and s. ATCP 100.20(3). The department may demand additional security at that time.
Publication Date:   April 20, 1999
Effective Date:   May 1, 1999
Expiration Date:   September 28, 1999
Hearing Date:   May 18, 1999
Extension Through:   November 26, 1999
EMERGENCY RULES NOW IN EFFECT
Commerce
(PECFA - Chs. Comm 46-47)
Rules adopted creating ch. Comm 46, relating to “Petroleum Environmental Cleanup Fund Interagency Responsibilities,” and relating to sites contaminated with petroleum products from petroleum storage tanks
Exemption From Finding of Emergency
On September 22, 1999, the Joint Committee for Review of Administrative Rules adopted a motion pursuant to s. 227.26 (2) (b), Stats., that directs the Departments Commerce and Natural Resources to promulgate as an emergency rule, no later than October 22, 1999, the policies and interpretations under which they intend to administer and implement the shared elements of the petroleum environmental cleanup fund program.
In administering the fund, the Departments had previously relied upon a Memorandum of Understanding for classifying contaminated sites and addressing other statements of policy that affect the two Departments. The rule that is being promulgated details the policies and interpretations under which the agencies intend to administer and guide the remedial decision making for sites with petroleum product contamination from petroleum product storage tank systems.
The rule defines “high priority site,” “medium priority site, ” and “low priority site,” and provides that the Department of Natural Resources has authority for high priority sites and that the Department of Commerce has authority for low and medium priority sites. The rule requires transfer of authority for sites with petroleum contamination in the groundwater below the enforcement standard in ch. NR 140 from the Department of Natural Resources to the Department of Commerce. The rule also establishes procedures for transferring sites from one agency to the other when information relevant to the site classification becomes available.
Publication Date:   October 20, 1999
Effective Date:   October 20, 1999
Expiration Date:   March 18, 2000
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