Emergency rules now in effect
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.
Copies of emergency rule orders can be obtained from the promulgating agency. The text of current emergency rules can be viewed at www.legis.state.wi.us/rsb/code.
Agriculture, Trade and Consumer Protection
Rules adopted revising ch. ATCP 77,
relating to certification of drug residue screening laboratories and approval of laboratory analysts to perform drug residue screening tests on milk.
Finding of emergency
The Department of Agriculture, Trade and Consumer Protection (“department") finds that an emergency exists and that the following emergency rule is necessary to protect the public welfare. This emergency rule will bring Wisconsin into compliance with federal requirements. Wisconsin must comply with the federal requirements in order for Wisconsin dairy plants to continue shipping milk in interstate commerce. Interstate milk shipments are critical for the state's dairy industry, and for the overall economy and well being of the state. The facts constituting the emergency are as follows:
(1) Grade A milk shipments are governed by the Interstate Pasteurized Milk Ordinance (PMO), jointly administered by the United States Food and Drug Administration (FDA) and the National Conference of Interstate Milk Shippers (representing participating states). In order for Wisconsin dairy plants to ship milk in interstate, Wisconsin must comply with the PMO and FDA mandates related to the PMO. Under s. 97.24, Stats., the Wisconsin Legislature has directed the department to adopt rules that conform to the PMO.
(2) Under the PMO and current state rules, all raw milk received by a dairy plant must be tested for certain drug residues (antibiotics from the penicillin family of drugs).
(3) FDA approves tests used for drug residue testing. There are 15 different tests that are approved for use. Some of these tests use a mechanical reader that determines the test result and then records it on a printer tape or directly to a computer. But other approved tests are “visually read", and involve no mechanical reader. In these tests, an individual analyst interprets a color change to determine whether drug residues are present.
(4) The department currently certifies laboratories and analysts that conduct confirmatory drug residue tests on raw milk samples. The department certifies these laboratories and analysts under ch. ATCP 77, Wis. Adm. Code. The department does not currently certify laboratories or analysts that perform only preliminary screening tests for drug residues, although it does provide training. Some preliminary screening tests use mechanical readers, while others are “visually read."
(5) On July 2, 2001, FDA issued a new directive requiring states to approve laboratories that conduct screening tests (not just confirmatory tests) for drug residues in milk. A state must conduct an on-site evaluation before approving a laboratory or analyst to conduct “visual read" screening tests. According to the FDA, the department must complete its evaluations and issue its approvals by March 1, 2002. FDA may de-certify Wisconsin milk shippers if the department fails to carry out this directive, or if milk shipments are not tested by approved laboratories and analysts. De-certification could prevent the movement of Wisconsin milk in interstate commerce.
(6) In order to ensure the continued movement of Wisconsin milk in interstate commerce, the department must adopt rules expanding the current lab certification program under ch. ATCP 77, Wis. Adm. Code. The rules will require certification of laboratories conducting drug residue screening tests. The rules will also require on-site evaluation and approval of individual analysts conducting “visual read" screening tests. The rules will create new lab certification fees to pay for the expanded program, including the cost to perform the required on-site evaluations. The department must adopt these rules as soon as possible, in order to complete the required evaluations and issue the required approvals by March 1, 2002.
(7) The department cannot create this new program, by normal rulemaking procedures, in time to meet the March 1, 2002 deadline. The department is therefore adopting this temporary emergency rule under s. 227.24, Stats., pending the adoption of “permanent" rules by normal procedures. This emergency rule is needed to ensure the continued movement of Wisconsin milk in interstate commerce, and to prevent the economic disruption that would occur if that movement were interrupted.
Publication Date:
November 15, 2001
Effective Date:
November 15, 2001
Expiration Date:
April 14, 2002
Hearing Dates:
November 29, December 4,
5 & 6, 2001
Commerce (2)
(Financial Assistance for Businesses and Communities)
(Chs. Comm 105-128)
1. Rules adopted revising ch. Comm 110 relating to brownfields redevelopment grants.
Finding of emergency
The Department of Commerce finds that an emergency exists and that adoption of the rule is necessary for the immediate preservation of public health, safety, and welfare.
The facts constituting the emergency are as follows. Under section
3628 of
2001 Wis. Act 16, the Department must begin accepting applications from trustees and nonprofit organizations, for brownfields redevelopment grants. And, under section 3630 of the Act, the Department must begin disallowing use of the grant funds to pay either delinquent real estate taxes or lien claims of the Department of Natural Resources or the federal Environmental Protection Agency.
The Department's rules for administering the brownfields grant program are currently contained in ch.
Comm 110 Wis. Adm. Code. These current rules do not recognize trustees and nonprofit organizations as eligible applicants, and do not include disallowing grant funds for payments on either back taxes, or on state or federal lien claims.
In November, the Department expects to begin promulgating permanent rules for making ch.
Comm 110 consistent with Act 16. Due to the mandatory rulemaking procedures under ch.
227, Stats., the permanent rules are not expected to become effective until July 1, 2002. In order to comply with Act 16 by accepting applications and issuing grants for trustees and nonprofit organizations prior to then, emergency rules reflecting these changes are needed, as included herein. These emergency rules also address the above disallowance for grant proceeds, and include some minor updating of the ch.
Comm 110 criteria for submitting grant applications and for filing subsequent financial and program reports.
Pursuant to s.
227.24, Stats., this rule is adopted as an emergency rule to take effect upon publication in the official state newspaper and filing with the Secretary of State and Revisor of Statutes.
Publication Date:
October 27, 2001
Effective Date:
October 27, 2001
Expiration Date:
March 26, 2002
Hearing Date:
January 11, 2002
2. Rules adopted creating
ch. Comm 107, relating to Wisconsin technology zone program.
Finding of emergency
The Department of Commerce finds that an emergency exists and that adoption of a rule is necessary for the immediate preservation of public health, safety and welfare.
Facts constituting the emergency are as follows:
• In accordance with s.
560.02 (4), Stats., the department of Commerce has the responsibility to promulgate rules to provide for the attraction, promotion and expansion of high-technology business in the state.
• Section
560.96, Stats., makes available certain tax benefits for certified businesses within the 8 designated technology zones. Tax benefits are available to certified businesses if their tax year begins on or after January 1, 2002.
• In response to a downturn in the economy and recent economic forecasts, Governor McCallum has prioritized the need to promulgate these rules as part of his economic stimulus package.
• The technology zone program will address several action items identified by the 2000 Wisconsin Economic Summit to ensure Wisconsin's short- and long-term economic vitality and success, including:
1. Combating the state's `brain drain' by increasing high tech jobs.
2. Linking Wisconsin's research expertise with Wisconsin firms to grow clusters of high-tech jobs.
3. Linking economic strategies across regions for power through collaboration.
• This emergency rule is being created in order that the process of designating the 8 technology zones be commenced as soon as possible and that such eligible businesses may become certified and participate in the tax benefits through the Wisconsin Technology Zone Program.
Publication Date:
December 5, 2001
Effective Date:
December 5, 2001
Expiration Date:
May 4, 2002
Hearing Date:
January 11, 2002
Financial Institutions - Banking
A rule was adopted creating
s. DFI-Bkg 80.90, relating to registration fees under the Wisconsin Consumer Act.
Finding of emergency
2001 Wis. Act 16 authorizes the Department of Financial Institutions to adopt rules pertaining to registration fees under the Wisconsin Consumer Act. The proposed rule revises the formula for calculating these fees. Without this rule, the department is unable to effectuate the legislature's requirement that registrations be completed by February 28, 2002.
Publication Date:
December 3, 2001
Effective Date:
December 3, 2001
Expiration Date:
May 2, 2002
Hearing Date:
January 28, 2002
Health & Family Services
Rules adopted creating s. HFS 119.07 (6m), relating to prescription drug coinsurance coverage.
Exemption from finding of emergency
These are emergency rules creating s.
HFS 119.07 (6m), Wis. Admin. Code to establish for prescription drug coverage a drug benefit separate from the medical benefits for the Health Insurance Risk-Sharing Plan (HIRSP) as authorized by s.
149.14 (5) (e), Stats., as amended by
2001 Wisconsin Act 16, and s.
149.146 (2) (am) 5., Stats., as created by
2001 Wisconsin Act 16. Section 9123 (9w) of the Act authorizes the department to use the emergency rulemaking procedures under s.
227.24, Stats., to promulgate these rules, exempts the department from making a finding of emergency, and from providing evidence that promulgating these rules as an emergency rule is necessary for the preservation of public peace, health, safety, or welfare.
Analysis Prepared by the Department of Health and Family Services
The State of Wisconsin in 1981 established a Health Insurance Risk-Sharing Plan for the purpose of making health insurance coverage available to medically uninsured residents of the state. HIRSP health insurance coverage includes prescription drug coverage. Currently, two major issues affect HIRSP prescription drug coverage. The first issue is that pharmacies have difficulty determining the financial liability of HIRSP policyholders. The second issue is that the current system of HIRSP reimbursement to policyholders for prescription drug costs is financially burdensome to HIRSP policyholders. To resolve these issues, the department proposes to implement effective January 1, 2002, new coinsurance provisions for HIRSP's drug benefit that will clarify the financial liability of HIRSP policyholders for covered prescription drug costs and eliminate the process of reimbursing policyholders for prescription drug expenses by establishing policyholders' minimum and maximum out-of-pocket costs for covered prescription drugs.
The proposed rules will affect approximately 12,000 HIRSP policyholders statewide.
Publication Date:
December 20, 2001
Effective Date:
January 1, 2002
Expiration Date:
May 31, 2002
Hearing Date:
January 29, 2002
Natural Resources
(Fish, Game, etc., Chs. NR 1-)
Rules adopted revising
ch. NR 20, relating to sturgeon spearing on the Lake Winnebago system.
Finding of emergency
The department of natural resources finds that an emergency exists and the foregoing rule is necessary for the immediate preservation of the public health, safety or welfare. The facts constituting this emergency are:
Winter spear harvest of sturgeon has continued to exceed the total allowable harvest goals due to an increase in spearing pressure and the current format of the season, which allows continued spearing for 1 day following the announcement of the season closure (when 80% of the total allowable harvest is reached). Harvest on the final day of the 2001 season resulted in a final harvest that exceeded the total allowable harvest by 52%. An emergency order is needed to protect the sturgeon population by preventing continued overharvest of female sturgeon during the 2002 season while permanent rules are being developed. The early closure should reduce spearing effort by 40%, which should decrease the daily harvest and reduce the risk of exceeding the total allowable harvest on the final day of the season.
Publication Date:
December 14, 2001
Effective Date:
December 14, 2001
Expiration Date:
May 13, 2002
Hearing Date:
January 14, 2002
Pharmacy Examining Board
Rules adopted revising
chs. Phar 1 and 2, relating to a pharmacy internship program.
Finding of emergency
2001 Wis. Act 16 creates and amends rules relating to a pharmacy internship program.
Section 3608L of Wis. Act 16, Wis. Stats. s.
450.045, which had previously authorized a Pharmacy Internship Board to implement and oversee the practice of pharmacy in this state by pharmacy interns prior to receiving licensure from the Pharmacy Examining Board.
Section 2154 of Wis. Act 16 mandates that effective December 31, 2001, the repeal of Wis. Stats. s.
450.045 becomes effective. As of December 31, 2001, there will currently be pharmacy interns still serving internships in this state and additional pharmacy students beginning January 1, 2001, who will seek to begin an internship program. However, no standards or oversight will be in place by administrative rule of the Pharmacy Examining Board which is now charged with authority for the pharmacy internship process.
The administrative rule-making process will not allow rules to be in place as of January 1, 2002, without the use of the emergency rule procedure. The emergency rule is needed therefore to effect a transfer of oversight from the extinguished Pharmacy Internship Board to the Pharmacy Examining Board as of January 1, 2001.
Publication Date:
December 30, 2001
Effective Date:
January 1, 2002
Expiration Date:
May 31, 2002
Hearing Date:
February 12, 2002
Public Instruction (2)
1.
Rules adopted revising
ch. PI 35, relating to the Milwaukee parental choice program.
Finding of emergency
The Department of Public Instruction finds an emergency exists and that a rule is necessary for the immediate preservation of the public welfare. The facts constituting the emergency are as follows:
In the past, private schools that intended to participate in the Milwaukee parental choice program were required to submit to the state superintendent a notice of intent to participate by May 1,
2001 Wis. Act 16 changed the submission date of the notice from May 1 to February 1. The rules allow a private school to choose from a variety of student application periods. The student application period chosen by the private school must be indicated on its notice. Because the notice is due at the department by February 1, emergency rules must be in place as soon as possible.
Publication Date:
January 28, 2002
Effective Date:
January 28, 2002
Expiration Date:
June 27, 2002
Hearing Date:
April 9, 2002
2.
Rules adopted creating
ch. PI 27, relating to the commencement of a school term.
Finding of emergency
Beginning in the 2002-2003 school year, school boards are required to start a school term on or after September 1 unless the board submits a request to the Department of Public Instruction stating the reasons it would like the school term to start earlier. The rules establish a procedure for school boards to use in requesting an earlier start date and gives examples of extraordinary reasons for granting such requests.
The Department of Public Instruction finds an emergency exists and that a rule is necessary for the immediate preservation of the public welfare. A statement of the facts constituting the emergency is:
• School boards are attempting to establish school calendars for the 2002-2003 school year and desire to have rules in place so proper procedures can be followed and requests can be approved or denied.
•School calendars are a mandatory subject of bargaining and more than 300 teacher contracts remain unsettled. Rules need to be in place so school calendars can be set and contracts can be ratified.
•Teacher contracts that have been settled and ratified prior to September 1, 2001, are listed in the rule as a reason school boards may begin the school term prior to September 1. Rules need to be in place so school boards and unions don't have to renegotiate these contracts.
Publication Date:
March 13, 2002
Effective Date:
March 13, 2002
Expiration Date:
August 10, 2002
Transportation
Rules adopted amending
s. Trans 102.15, relating to the issuance of driver's licenses and identification cards.
Finding of emergency
This rule is adopted in response to the September 11, 2001, terrorist hijackings in the United States, and are intended to help uncover any possible terrorist attempting to obtain identification documents through the Wisconsin Department of Transportation. On November 21, 2001, the New York Times reported that to support their terrorism, terrorists finance applications for political asylum and thus implant terrorist cells in Western Europe. This rule change could interrupt terrorists who have applied for or received asylum in the United States and who attempt to obtain Wisconsin identification documents.
Because of the urgency of current government efforts directed at taking steps to interrupt terrorist workings, this order adopting an emergency rule shall take effect as provided below.
Publication Date:
December 21, 2001
Effective Date:
December 21, 2001
Expiration Date:
May 20, 2002
Hearing Date:
February 15, 2002
State Treasurer
Rules adopted creating
ch. Treas 1 relating to the Wisconsin College Savings Program Board.
Exemption from finding of emergency
Analysis prepared by the Office of the State Treasurer
Statutes interpreted: s.
14.64 et seq., Stats.
The Wisconsin College Savings Program Board establishes a rule for the operation of the College Savings Program. The rule is designed to grant flexibility to program participants wherever possible, while enabling the State and its private-sector partners to administer the program in a manner that protects the program's financial integrity and viability. Maintaining eligibility as a “qualified tuition program" pursuant to section
529 of the Internal Revenue Code [
26 USC 529] is another primary objective. “529" programs are eligible for a number of federal tax benefits that are attractive to families saving for future college costs. Significant features of the rule are addressed below:
Sections
Treas 1.03,
1.04 and
1.05 describe who may open an account and how to open an account. Section
Treas 1.06 discusses designating a successor owner and describes how to change ownership of an account. Sections
Treas 1.07 and
1.08 define the account beneficiary and how to change the beneficiary on an account.
Section
Treas 1.09 details how to make contributions to an account, including minimum and maximum contribution limits, and how to “rollover" an account balance to another section 529 program. IRS requirements relating to investment direction are also detailed.
Sections Treas 1.11, 1.12 and 1.13 describe account withdrawals, distributions and refunds. Special circumstances are also provided for in these sections, such as the death or disability of the beneficiary or receipt of a scholarship by a beneficiary. Section Treas 1.14 sets forth conditions under which the Board may terminate an owner's account. Sections Treas 1.15 and 1.16 address related fees and penalties.
Publication Date:
January 7, 2002
Effective Date:
January 7, 2002
Expiration Date:
June 6, 2002
Hearing Date:
March 5, 2002
Volunteer Fire Fighter and Emergency Medical Technician Service Award Board
Rules adopted creating
ch. VFF-EMT 1, relating to the length of service award program.
Exemption from finding of emergency
Analysis prepared by the Department of Administration:
Statutes interpreted: s.
16.25 et seq., Stats.
Pursuant to section
16.25 (2) through
(5), Stats., the Volunteer Fire Fighter and Emergency Medical Technician Service Award Board (“Board") is required to establish by rule a program (“Length of Service Awards Program" or “Program") to provide length of service awards, as described in
26 USC 457 (e) (11), to volunteer firefighters (“VFF") and municipalities that operate volunteer fire departments or contract with volunteer fire companies, and to volunteer emergency medical technicians (“EMT"). To the extent permitted by federal law, the Program is to be designed to treat length of service awards as a tax-deferred benefit under the Internal Revenue Code. The rules are to include design features for the Program, the requirements for and the qualifications of private sector entities that are eligible to provide administrative services and investment plans under the Program, and an appeal. Significant features of the rule are addressed below:
Section
VFF-EMT 1.04 describes eligibility requirements for municipalities wishing to participate in the program, such as adopting a resolution or ordinance authorizing participation, developing standards for determining the service required of the individuals it sponsors in order to qualify for municipal contributions and providing for circumstances where municipalities wish to jointly operate, or contract with, the same volunteer fire department or volunteer fire company.
Section
VFF-EMT 1.05 sets forth requirements and procedures for municipal contributions made on behalf of eligible volunteers, and for the state's matching contribution (up to $250 per eligible individual annually).
Section
VFF-EMT 1.06 sets forth the parameters for municipal contributions for prior service rendered before the municipality began participating in the Program. The minimum contribution for prior service is set at $100, and those contributions may spread over a number of years. A separate accounting is required for these prior service payments.
Section
VFF-EMT 1.07 sets forth the Program's vesting requirements and the various permutations possible between full and partial vesting periods and the minimum age requirement (age 60) for payout. Section
VFF-EMT 1.07 (1) establishes that 20 years service is required to fully vest and, upon reaching age 60, the award must be paid. (This requirement insures that the benefit maintains its tax deferred status.) Section
VFF-EMT 1.07 (2) provides that a fully vested individual age 60 or older may continue to provide service toward a new length of service award under a new account but, for IRS rule purposes, contributions must be paid immediately and cannot accumulate. Section
VFF-EMT 1.07 (3) provides for partial vesting after 10 years' service. Should the individual perform more than 10 but less than 20 years' service, upon reaching age 60, he or she will receive only 50% of the net asset value of the benefit account for the first 10 years of service rendered, and an additional 5% for each year thereafter, up to 19 years. Section
VFF-EMT 1.07 (7) allows an individual to provide simultaneous service to two or more separate municipalities but, in such cases, only one year of service credit may be earned.
Section
VFF-EMT 1.09 details the notice and procedure for when a VFF-EMT ceases performing service for one participating municipality and begins performing service for another municipality, which utilizes a different program administrator or vendor. Such a transfer is allowed, but the account will be frozen and a new one started with the new program administrator. However, any accumulated years of credited service will continue to count toward the vesting requirements. Section
VFF-EMT 1.10 allows for benefits to be received both upon disability, or to the beneficiaries upon death of the VFF-EMT.
Section
VFF-EMT 1.12 sets forth minimum program administrator qualifications. These include five years of experience providing a length of service award program, adequate marketing and enrollment services capabilities, various accounting and record keeping procedures and abilities, membership in good standing in various organizations customary in the program administrator's or investment manager's industry that provides protection against loss, and overall financial strength.
Section
VFF-EMT 1.13 provides for the administration of plans offered by a program administrator under a contract with the Board, and standard provisions to be included. These include compliance with all pertinent state and federal statutes, rules and regulations, mandatory full disclosure to the Board of all fees and commissions earned directly and indirectly on the operations of the program, audits, and data processing system failure and administrative service interruption contingency plans. Also important are the required annual statements to participating municipalities and the individuals they sponsor, detailing all contributions made and the fees commissions, and charges paid that affect the individual's account.
Section
VFF-EMT 1.17 provides for a two-step appeals process in which a VFF-EMT may first protest service credit issues to the participating municipality, which may consult with the program administrator. Any decision of the municipality may be reviewed at the Board's discretion. An individual who has a substantial interest affected by a Board decision may appeal directly in writing to the Board. All Board decisions are final.
Publication Date:
September 21, 2001
Effective Date:
September 21, 2001
Expiration Date:
February 18, 2002
Hearing Date:
December 27, 2001
Extension Through:
April 18, 2002
Workforce Development
(Prevailing Wage Rates, Chs. DWD 290-294)
Rules adopted revising
ch. DWD 290 and creating
ch. DWD 293, relating to the adjustment of thresholds for application of prevailing wage rates and payment and performance assurance requirements.
Finding of emergency
The Department of Workforce Development finds that an emergency exists and a rule is necessary for the immediate preservation of the public peace, health, safety, or welfare. A statement of facts constituting the emergency is:
The Department of Workforce Development is acting under its statutory authority to adjust thresholds for the application of prevailing wage laws on state or local public works projects and the application of payment and performance assurance requirements for a public improvement or public work. The thresholds are adjusted in proportion to any change in the construction cost index since the statutes were effective or the last adjustment.
If these new thresholds are not put into effect by emergency rule, the old thresholds will remain effective for approximately six to seven months, until the conclusion of the permanent rule-making process. The thresholds are based on national construction cost statistics and are unlikely to be changed by the permanent rule-making process. The department is proceeding with this emergency rule to adjust the thresholds of the application of the prevailing wage rates to avoid imposing an additional administrative burden on local governments and state agencies caused by an effective decrease of the thresholds due solely to inflation in the construction industry. The department is proceeding with this emergency rule to adjust the thresholds of the application of the payment and performance assurance requirements in s.
779.14, Stats., to avoid imposing an additional administrative burden on contractors for the same reason. Adjusting the thresholds by emergency rule will also ensure that the adjustments are effective on a date certain that is prior to the time of year that the relevant determinations are generally made.
Publication Date:
December 27, 2001
Effective Date:
January 1, 2002
Expiration Date:
May 31, 2002
Hearing Date:
February 27, 2002
