No. 536
Publication Date: August 31, 2000
Effective Date: September 1, 2000
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 12.
Agriculture, Trade and Consumer Protection:
Rules relating to swine import and required tests.
Rules relating to fees required of agent municipalities inspecting retail food establishments.
Rules relating to an implied warranty on disease-free cattle and goats.
Rule relating to residential rental practices.
Rules adopted creating ch. ATCP 16, relating to importing certain animals from a USDA-designated “non-modified accredited" state. [FIRST APPEARANCE]
Commerce:
PECFA, Chs. Comm 46 and 47
Rules relating to Petroleum Environmental Cleanup Fund interagency responsibilities.
Rules relating to appeals under the PECFA program.
Employe Trust Funds:
Rules relating to the distribution to annuitants under 1999 Wis. Act 11.
Health & Family Services:
Management, etc., Chs. HFS 1--
Rules relating to family care.
Health & Family Services:
Medical Assistance, Chs. HFS 100-108
Rules relating to the medicaid purchase plan.
Health & Family Services:
Health, Chs. HFS 110--
Rules relating to the Health Risk-Sharing Plan.
Natural Resources:
Fish, Game, etc., Chs. NR 1--
Rules relating to deer hunting.
Natural Resources:
Environmental Protection-General, Chs. NR 100--
Rules relating to the brownfield site assessment grant program.
Natural Resources:
Environmental Protection-Investigation & Remediation, Chs. NR 700--
Rules relating to sites contaminated with petroleum products from petroleum storage tanks.
Public Service Commission:
Rules relating to the definition of fuel and permissible fuel costs.
Revenue:
Rules relating to retailer performance program of the Wisconsin Lottery.
Rules adopted creating s. Tax 9.69, relating to the tobacco settlement agreement. [FIRST APPEARANCE]
Transportation:
Rules relating to evaluating bids solicited for transit service in a competitive process.
Rule relating to cost-efficiency standards for systems participating in the Urban Mass Transit Operating Assistance Program.
Workforce Development:
Economic Support, Chs. DWD 11-59
Rule relating to W-2 Program disregard of 2000 census income.
Scope Statements.
Pages 13 to 15.
Pharmacy Examining Board:
Phar Code - Relating to the central filling of prescription orders for dispensing.
Public Service Commission:
Ch. PSC 160 - Relating to the biennial review of Universal Service Fund (USF) rules [Docket 1-AC-198].
Public Service Commission:
Ch. PSC 161- Relating to modification of rules on the educational telecommunications access program [Docket 1-AC-199].
Public Service Commission:
Ch. PSC 167 - Relating to modification of rules on extended area telephone service (EAS) [Docket 1-AC-200].
Regulation and Licensing:
RL Code - Relating to standards for approval of drug testing programs.
Regulation and Licensing:
RL Code - Relating to home inspectors.
Notices of Submittal of Proposed Rules to Wisconsin Legislative Council Rules Clearinghouse.
Pages 16 to 17.
Agriculture, Trade and Consumer Protection:
Ch. ATCP 30 - Relating to the use of atrazine pesticides.
Insurance, Commissioner of:
Ch. Ins 23 - Relating to standards for insurance marketed to fund prearranged funeral plans.
Revenue:
S. Tax 9.69 - Relating to the tobacco product manufacturers' Master Settlement Agreement.
Transportation:
Ch. Trans 156 - Relating to the automated partnership processing system program.
Transportation:
Ch. Trans 158 - Relating to the placement of Wisconsin-issued Motor Vehicle Identification Numbers (VINs).
Notices of Hearings or of Proposed Rules.
Pages 18 to 23.
Agriculture, Trade and Consumer Protection:
Hearing to consider ch. ATCP 16, relating to importing bovine animals, goats or cervids from a “non-modified accredited" state. [Hearing date: 09/19/00]
Agriculture, Trade and Consumer Protection:
Hearing to consider revision to ch. ATCP 30, relating to the use of atrazine. [Hearing date: 09/13/00]
Natural Resources:
Fish, Game, etc., Chs. NR 1--
Hearing to consider revision to ch. NR 7, relating to recreational boating facilities. [Hearing date: 09/12/00]
Natural Resources:
Fish, Game, etc., Chs. NR 1--
Hearings to consider revision to ch. NR 10, relating to deer management unit boundaries and population goals. [Hearing dates: 09/11/00, 09/12/00, 09/13/00, 09/14/00 and 09/18/00]
Revenue:
Hearing to consider rules creating s. Tax 9.69, relating to the Master Settlement Agreement between the state of Wisconsin and tobacco product manufacturers. [Hearing date: 09/18/00]
Transportation:
Hearing to consider ch. Trans 156, relating to the automated partnership processing system (APPS) program. [Hearing date: 10/04/00]
Notice of Submission of Proposed Rules to the Presiding Officer of Each House of the Legislature, Under S. 227.19, Stats.
Page 24.
Administration:
(CR 00-80) - Ch. Adm 43
Administration:
(CR 00-81) - Ch. Adm 44
Administration:
(CR 00-82) - Ch. Adm 45
Regulation and Licensing:
(CR 00-97) - S. RL 86.01 (6) and ch. RL 87, Appendix I
Administrative Rules Filed with the Revisor of Statutes Bureau.
Page 25.
Commerce:
(CR 00-38) - Ch. Comm 43
Workforce Development:
(CR 99-163) - Chs. DWD 100 to 102, 110, 111,
126 to 129, 132, 135, 140 and 149
Rules Published in this Wis. Adm. Register.
Page 26.
Arts Board:
(CR 00-63) - S. AB 2.09 (5)
Employe Trust Funds:
(CR 97-72) - S. ETF 20.02
Health and Family Services:
(CR 00-1) - Chs. HFS 82, 83, 88, 124 and 131 to 134
Health and Family Services:
(CR 00-52) - Ch. HFS 12
Insurance, Commissioner of:
(CR 00-61) - SS. Ins 17.01 (3) and 17.28 (6) and (6a)
Natural Resources:
(CR 99-109) - Ch. NR 300 and ss. NR 216.45, 400.02,
405.15, 406.08, 408.09 and 411.07
Revenue:
(CR 00-23) - S. Tax 2.32
Technical College System Board:
(CR 00-44) - Ch. TCS 16
Transportation:
(CR 00-57) - Chs. Trans 101 to 104 and
s. Trans 117.03 (3) (j)
Transportation:
(CR 00-68) - S. Trans 131.03 (2) (b)
Transportation:
(CR 00-69) - SS. Trans 325.02 and 326.01 and
ch. Trans 328
Transportation:
(CR 00-77) - Ch. Trans 276
Transportation:
(CR 00-85) - SS. Trans 142.01, 142.02 and 142.07
Sections Affected by Rule Revisions and Corrections.
Pages 27 to 28.
REVISIONS
Arts Board:
Ch. AB 2
Employe Trust Funds:
Ch. ETF 20
Health and Family Services (Management., Policy & Budget,
Chs. HFS 1--):

Ch. HFS 12
Health and Family Services (Community Services, Chs. HFS 30--):
Chs. HFS 82, 83 and 88
Health and Family Services (Health, Chs. HFS 110--):
Chs. HFS 124 and 131 to 134
Insurance, Commissioner of:
Ch. Ins 17
Natural Resources (Environmental Protection-WPDES,
Chs. NR 200--):

Ch. NR 216
Natural Resources (Environmental Protection--Water Regulation,
Chs. NR 300--):

Ch. NR 300
Natural Resources (Environmental Protection--Air Pollution
Control, Chs. NR 400--):

Chs. NR 400, 405, 406, 408 and 411
Revenue:
Ch. Tax 2
Technical College System Board:
Ch. TCS 16
Transportation:
Chs. Trans 101 to 104, 117, 131, 142, 276, 325,
326 and 328
EDITORIAL CORRECTIONS
Health and Family Services (Community Services, Chs. HFS 30-):
Chs. HFS 82 and 88
Health and Family Services (Health, Chs. HFS 110-):
Chs. HFS 124, 132 and 133
Final Regulatory Flexibility Analyses.
Pages 29 to 31.
Arts Board:
(CR 00-63) - S. AB 2.09 (5)
Employe Trust Funds:
(CR 97-72) - S. ETF 20.02
Health and Family Services:
(CR 00-1) - Chs. HFS 82, 83, 88, 124 and 131 to 134
Health and Family Services:
(CR 00-52) - Ch. HFS 12
Insurance, Commissioner of:
(CR 00-61) - SS. Ins 17.01 (3) and 17.28 (6) and (6a)
Natural Resources:
(CR 99-109) - Ch. NR 300 and ss. NR 216.45, 400.02,
405.15, 406.08, 408.09 and 411.07
Revenue:
(CR 00-23) - S. Tax 2.32
Technical College System Board:
(CR 00-44) - Ch. TCS 16
Transportation:
(CR 00-57) - Chs. Trans 101 to 104 and
s. Trans 117.03 (3) (j)
Transportation:
(CR 00-68) - S. Trans 131.03 (2) (b)
Transportation:
(CR 00-69) - SS. Trans 325.02 and 326.01 and
ch. Trans 328
Transportation:
(CR 00-77) - Ch. Trans 276
Transportation:
(CR 00-85) - Ch. Trans 142
Executive Orders.
Page 32.
Executive Order #402:
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 Sergeant Todd J. Stamper of the Crandon Police Department.
Executive Order #403:
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 Brave Men and Women of the Armed Forces of the United States Who Lost Their Lives in the Korean War.
Executive Order #404:
Relating to the Establishment of the Office of State Poet Laureate and the Governor's Poet Laureate Nomination Commission.
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 (5)
Agriculture, Trade & Consumer Protection
1.   Rules adopted revising s. ATCP 11.20 and creating ss. ATCP 11.01 (11m) and 11.73, relating to swine import and required tests.
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:
  Pseudorabies is a highly contagious disease of swine and other livestock. Wisconsin initiated its pseudorabies program in 1976. Since that time, the department has worked diligently, pork producers have sacrificed significantly and the state has paid substantial costs to eradicate the disease. In 1997, the National Pseudorabies Control Board recognized Wisconsin as a pseudorabies stage IV state. If there are no incidents of pseudorabies in the state before October, 2000, the state will be classified as a pseudorabies stage V state (free of the disease) at that time. Classification as a pseudorabies stage IV or V state creates significant benefits in the swine export market.
  There has been a significant increase in pseudorabies cases reported in several pseudorabies stage II and III states. In the past, Wisconsin pork producers have imported many swine from the pseudorabies stage II and III states which are now experiencing an increase in pseudorabies.
  If pseudorabies spreads to Wisconsin, the Wisconsin pork industry will be hampered in its ability to produce and export swine and pork products.
  The increased prevalence of pseudorabies in states from which Wisconsin import shipments originate creates a substantial threat to the pork industry in Wisconsin. The department finds that an emergency rule is needed to minimize the threat of pseudorabies.
Publication Date:   May 25, 2000
Effective Date:   May 25, 2000
Expiration Date:   October 22, 2000
Hearing Date:   June 29, 2000
2.   Rule adopted amending s. ATCP 74.08(1), relating to fees required of agent cities and counties that license and inspect retail food establishments.
Finding of Emergency
The Department of Agriculture, Trade and Consumer Protection (“department") finds that an emergency rule is necessary to promote the public welfare, and prevent unnecessary economic hardship on cities and counties that license and inspect retail food establishments for the department. The facts constituting the emergency are as follows:
(1) The department licenses and inspects retail food establishments under s. 97.30, Stats. Under s. 97.41, Stats., the department may enter into an agreement with a city or county, under which the city or county licenses and inspects retail food establishments for the department. The department monitors and assists the agent city or county. From the license fees that it collects, an agent city or county must pay the department an annual fee to cover the department's costs. The department sets the fee by rule.
(2) By rule, the department establishes license fees for retail food establishments that it licenses directly. An agent city or county may charge a license fee that differs from the state license fee established by the department.
(3) Under current rules, an agent city or county must pay the department an annual fee, for each retail food establishment, that is equal to 20% of the license fee that the department would charge if it licensed the establishment directly.
(4) Effective February 1, 1998; the department increased license fees for retail food establishments that it licenses. The fee increase was caused, in part, by a legislative budget change that required the department to recover 60% (rather than 50%) of its program costs from license fees. The fee change approximately doubled the department's license fees, increasing the maximum retail food license fee from $210 to $450 and the minimum fee from $42 to $90.
(5) The department's 1998 license fee increase incidentally increased the annual fees that agent cities were required to pay to the department, beginning with the license year ending June 30, 1999. As a result of the department's license fee increase, agent cities and counties were required to pay the department 20% of the increased license fee amounts. This change effectively doubled city and county fee payments to the department and imposed a serious financial burden on those city and county governments. The increased fee payments also exceeded the amounts needed to cover the department's costs under agent city and agent county agreements.
(6) In order to reduce the financial burden on local governments and eliminate the department's surplus receipts, it is necessary to reduce the agent city and county percentage fee payment from 20% to 10% beginning with the license year that ends June 30, 2000. The public welfare necessitates that the department make this rule change by June 30, 2000. However, it is not possible to make this rule change by June 30 using normal rulemaking procedures. The department is, therefore, adopting this rule change by emergency rule, pending adoption by normal rulemaking procedures.
Publication Date:   June 30, 2000
Effective Date:   July 1, 2000
Expiration Date:   November 29, 2000
3.   Rules adopted creating ss. ATCP 10.21(1m) and 10.63(1m) relating to an implied warranty that cattle and goats are free of paratuberculosis (also known as Johne's disease).
Finding of Emergency
(1) Paratuberculosis, also known as Johne's disease, is an infectious and communicable disease of cattle and goats. The disease is slow to develop, and an infected animal may go for years without showing symptoms. An infected animal, which is free of symptoms at the time of sale, may spread the disease to a buyer's herd. The disease has a serious impact on milk production, and is ultimately fatal to infected animals.
(2) 1989 Wis. Act 277 established a Johne's disease “implied warranty" in the sale of cattle and goats. Under the “implied warranty" law, s. 95.195, Stats., a seller implicitly warrants to a buyer that cattle and goats are free of Johne's disease unless the seller complies with certain testing and disclosure requirements. If cattle or goats are infected with Johne's disease at the time of sale, and the seller has not complied with applicable testing and disclosure requirements, the buyer may sue the seller for damages under the “implied warranty."
(3) The “implied warranty" law protects buyers of cattle and goats, and gives sellers an incentive to test their animals for Johne's disease. A seller may avoid the “implied warranty" by testing and disclosing. Testing is important for the ultimate control of this serious disease.
(4) 1999 Wis. Act 160 changed the “implied warranty" law, effective July 1, 2000. It changed prior testing and disclosure requirements to make the law more effective and workable. It also authorized the department of agriculture, trade and consumer protection (“DATCP") to cover other diseases and animal species by rule. DATCP must implement the new law by rule. The “implied warranty" no longer applies to any animals or diseases (including Johne's disease) unless DATCP identifies those animals and diseases by rule.
(5) DATCP, the livestock industry and the Legislature intended that the new law would apply, at a minimum, to Johne's disease in cattle and goats. The Legislature, in a related action, appropriated $100,000 in grant funds to help herd owners pay for Johne's disease testing in FY 2000-2001. DATCP has also adopted new Johne's disease rules for cattle and goats, in anticipation of the July 1, 2000 effective date of the new law. The new rules, contained in ss. 10.21 and 10.63, Wis. Adm. Code, clearly indicate DATCP's understanding and intent that the new law would apply to Johne's disease in cattle and goats. However, the new rules are technically flawed, in that they fail to state explicitly that the new law applies to Johne's disease in cattle and goats. This emergency rule remedies that technical flaw on a temporary basis, pending the adoption of “permanent" remedial rules.
(6) This emergency rule is needed to resolve any possible challenge or uncertainty related to the coverage of the new “implied warranty" law. This emergency rule clarifies that the “implied warranty" law applies to Johne's disease in cattle and goats. This emergency rule is needed to protect the public peace, health, safety and welfare. This emergency rule will help to control a serious disease of cattle and goats, will protect buyers of cattle and goats, will promote certainty in commercial transactions, and will prevent unnecessary litigation related to the applicability of the “implied warranty" law.
Publication Date:   June 30, 2000
Effective Date:   July 1, 2000
Expiration Date:   November 29, 2000
Hearing Date:   July 27, 2000
4.   Rule adopted repealing s. ATCP 134.06 (3) (c) note and creating s. ATCP 134.06 (3) (d), relating to residential rental practices.
Exemption From Finding of Emergency
On June 21, 2000, the Legislature's Joint Committee for Review of Administrative Rules (JCRAR) found that the “note" to s. ATCP 134.06 (3) (c) is actually a rule and directed DATCP to adopt the “note" as an emergency rule. According to s. 227.26 (2) (b), Stats., DATCP must promulgate the emergency rule under s. 227.24 (1) (a), Stats., within 30 days after the JCRAR directs DATCP to do so. Because the JCRAR has directed DATCP to adopt this emergency rule, DATCP is not required to make any other finding of emergency.
Analysis prepared by the Department of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state landlord-tenant rules contained in ch. ATCP 134, Wis. Adm. Code. These rules affect over 1.5 million Wisconsin residents.
This emergency rule modifies current residential rental practices rules related to security deposit withholding. Under current rules, a landlord may not withhold a security deposit for normal wear and tear, or for other damages or losses for which the tenant cannot reasonably be held responsible. A “note" to s. ATCP 134.06 (3) (c) also states that a landlord may not withhold from a tenant's security deposit for routine painting or carpet cleaning, where there is no unusual damage caused by tenant neglect.
Publication Date:   July 20, 2000
Effective Date:   July 20, 2000
Expiration Date:   December 18, 2000
5.   Rules adopted creating ch. ATCP 16, relating to importing bovine animals, goats or cervids from a state designated by USDA as a tuberculosis “non-modified accredited" state.
Finding of Emergency
(1) Bovine tuberculosis is a contagious, infectious and communicable disease caused by Mycobacterium bovis (M. bovis). It affects cattle, bison, deer, elk, goats and other species, including humans. Bovine tuberculosis in infected animals and humans manifests itself in lesions of the lung, bone, and other body parts. Bovine tuberculosis causes weight loss and general debilitation, and can be fatal.
(2) Wisconsin is currently classified by the United States Department of Agriculture (USDA) as “accredited-free" for tuberculosis.
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