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.
(3) The USDA recently reclassified Michigan from “accredited-free" to “non-modified accredited," reflecting a higher risk of bovine tuberculosis.
(4) A significant number of bovine animals, goats and cervids are imported to Wisconsin from Michigan each year.
(5) The last known case of bovine tuberculosis in cattle in Wisconsin was confirmed in an animal imported from Michigan.
(6) If bovine tuberculosis becomes established in Wisconsin, it will pose a significant threat to the health of domestic animals and humans in this state.
(7) An emergency rule is needed to protect the public peace, health, safety and welfare. This emergency rule will help to control a serious disease in cattle, goats and cervids and will help protect the marketability of Wisconsin-raised animals.
Publication Date:
August 11, 2000
Effective Date:
August 11, 2000
Expiration Date:
January 8, 2001
Hearing Date:
September 19, 2000
EMERGENCY RULES NOW IN EFFECT (2)
Commerce
(PECFA - Chs. Comm 46-47)
1. Rules adopted creating ch. Comm 46, relating to “Petroleum Environmental Cleanup Fund Interagency Responsibilities," and relating to site contaminated with petroleum products from petroleum storage tanks.
Exemption From Finding of Emergency (See section 9110 (3yu) 1999 Wis. Act 9)
Analysis prepared by the Department of Commerce
Statutory authority: ss. 227.11 (2)(a) and 227.24 and s. 9110 (3yu)(b) of 1999 Wis. Act 9.
Statutes interpreted: ss. 101.143, 101.144, 292.11, and 292.31 and ch. 160
The proposed ch. Comm 46 is identical to ch. NR 746 that is being promulgated by the Department of Natural Resources.
Chapter Comm 46 provides that the Department of Natural Resources has authority for “high-risk sites" and that the Department of Commerce has authority for “low and medium risk sites." The rule requires the Department of Natural Resources to transfer authority for sites with petroleum contamination from petroleum storage tanks to the Department of Commerce once the site is classified, unless the site is classified as a “high-risk site" or the site is contaminated by one or more hazardous substances other than petroleum products discharged from a petroleum storage tank. The rule also establishes procedures for transferring sites from one agency to the other whenever new information relevant to the site classification becomes available.
Chapter Comm 46 also provides jointly developed requirements for:
1. Selecting remedial bids and the setting of remediation targets for sites that are competitively bid or bundled with another site or sites.
2. Determining when sites may close.
3. Determining when remediation by natural attenuation may be approved as the final remedial action for a petroleum-contaminated site.
4.Tracking the achievement of remediation progress and success.
5. Reporting of program activities.
Publication Date:
May 17, 2000
Effective Date:
May 18, 2000
Expiration Date:
September 1, 2000
Hearing Dates:
June 15, July 10 & 12, 2000
Extension Through:
October 30, 2000
2. Rules adopted amending s. Comm 47.53, relating to appeals of decisions issued under the Petroleum Environmental Cleanup Act (PECFA) program.
Finding of Emergency
The Department of Commerce finds that an emergency exists and that a rule is necessary for the immediate preservation of the public peace, health, safety or welfare. A statement of the facts constituting the emergency is:
The department is receiving funds from a bonding initiative to enable it to issue approximately 3,500 decisions on applications for PECFA funding which had been awaiting the availability of funding. Because these decisions will be issued over a very short time frame, parties receiving decisions and law firms representing them, will be required to review and analyze a large volume of decisions to determine whether they wish to appeal specific departmental decisions. Given the large number of decisions and the normal rate of appeals, it is reasonable to expect that the public will be required to prepare and file a large volume of appeals within a short time period. Attorneys, lenders and consultants representing multiple claimants have expressed concern about the workload associated with having to review decisions and draft appeals on the higher volume of decisions issued by the department within the current 30 day window. The emergency rule temporarily expands the filing period from 30 days to 90 days to provide additional time to evaluate decisions and determine whether an appeal should be filed. The rule covers the time period when the highest volume of decisions are to be issued.
Publication Date:
February 15, 2000
Effective Date:
February 15, 2000
Expiration Date:
July 14, 2000
Hearing Date:
March, 27, 2000
Extension Through:
October 11, 2000
EMERGENCY RULES NOW IN EFFECT
Employe Trust Funds
Rules adopted revising s. ETF 20.25 (1), relating to the distribution to annuitants from the transaction amortization account to the annuity reserve under 1999 Wis. Act 11.
Finding of Emergency
The Department of Employe Trust Funds, Employe Trust Fund Board, Teacher Retirement Board and Wisconsin Retirement Board find that an emergency exists and that administrative rules are necessary for the immediate preservation of the public welfare. A statement of the facts constituting the emergency is:
The Public Employe Trust Fund was created for the purpose of helping public employees to protect themselves and their beneficiaries against the financial hardships of old age, disability, death, illness and accident. The Trust Fund thus promotes economy and efficiency in public service by facilitating the attraction and retention of competent employees, by enhancing employee morale, by providing for the orderly and humane departure from service of employees no longer able to perform their duties effectively, and by establishing equitable benefit standards throughout public employment. There are approximately 102,000 annuitants of the Wisconsin Retirement System, of whom about 80% reside throughout the State of Wisconsin. The Department of Employe Trust Funds estimates that up to 7,000 public employees covered by the Wisconsin Retirement System will retire and take annuity benefits effective during 1999.
WRS participants who retire during 1999 are not eligible to have their retirement benefits calculated using the higher formula factors for pre-2000 service which are provided by the treatment of Wis. Stats. 40.23 (2m) (e) 1. through 4. by 1999 Wis. Act 11. Section 27 (b) 2. of the Act directs that any funds allocated to the employer reserve in the Trust Fund as a result of the $4 billion transfer mandated by the Act, which exceed $200,000,000 shall be applied towards funding any liabilities created by using the higher formula factors with respect to pre-2000 service.
If the existing administrative rule mandating proration is not revised, then the distribution of the funds transferred into the annuity reserve by Act s. 27 (1) (a) of 1999 Wis. Act 11 will be prorated with respect to annuities with effective dates after December 31, 1998, and before January 1, 2000. The extraordinary transfer of funds from the Transaction Amortization Account (TAA) mandated by 1999 Wis. 11 causes funds, which would otherwise have remained in the TAA to be recognized and fund annuity dividends in later years, to instead be transferred into the annuity reserve in 1999 and paid out as an annuity dividend effective April 1, 2000. Normally, annuities effective during 1999 would receive only a prorated dividend. If this occurred with respect to this extraordinary distribution, then annuitants with annuity effective dates in 1999 would be deprived of a portion of the earnings of the Public Employe Trust Fund that would otherwise have affected their annuities as of April 1, 2001 and in subsequent years.
Promulgation of an emergency rule is the only available option for revising the effect of Wis. Adm. Code s. ETF 20.25 (1) before December 31, 1999. Accordingly, the Department of Employe Trust Funds, Employe Trust Funds Board, Teacher Retirement Board and Wisconsin Retirement Board conclude that preservation of the public welfare requires placing this administrative rule into effect before the time it could be effective if the Department and Boards were to comply with the scope statement, notice, hearing, legislative review and publication requirements of the statutes.
Publication Date:
December 27, 1999
Effective Date:
December 31, 1999
Expiration Date:
May 29, 2000
Hearing Date:
February 11, 2000
