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.
Occasionally the Legislature grants emergency rule authority to an agency with a longer effective period than 150 days or allows an agency to adopt an emergency rule without requiring a finding of emergency.
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 or a statement of exemption from a 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 creating
ss. ATCP 99.13, 99.25, 100.13 and 101.25, relating to the partial refund of certain agricultural producer security assessments required of grain dealers, grain warehouse keepers, milk contractors and vegetable contractors.
Finding of emergency
(1) The Wisconsin department of agriculture, trade and consumer protection currently administers an agricultural producer security program under ch.
126, Stats. (“producer security law"). This program is designed to protect agricultural producers from catastrophic financial defaults by contractors who procure agricultural commodities from producers.
(2) Under the producer security law, contractors pay annual assessments to an agricultural producer security fund (“the fund"). If a contractor defaults in payments to producers, the department may compensate producers from the fund. A contractor's annual fund assessment is based, in large part, on the contractor's annual financial statement. The producer security law spells out a formula for calculating assessments. However, the department may modify assessments by rule.
(3) The fund assessment formula is designed to require higher assessments of contractors who have weak financial statements (and may thus present greater default risks). But the statutory formula may generate unexpectedly high assessments in some cases, where a contractor's strong financial condition is temporarily affected by financial transactions related to a merger or acquisition. This may cause unfair hardship, and may unfairly penalize some mergers or acquisitions that actually strengthen security for agricultural producers. This may have an unnecessarily adverse impact on contractors, producers and Wisconsin economic development.
(4) The department may adjust assessments by rule, in order to ameliorate unintended results. But the normal rulemaking process will require at least a year to complete. The temporary emergency rule is needed to address this matter in the short term, and to provide relief for contractors already affected.
Publication Date:
January 29, 2004
Effective Date:
January 29, 2004
Expiration Date:
June 27, 2004
Chiropractic Examining Board
Rules adopted revising
ch. Chir 2, relating to passing and retaking the practical examination.
Finding of emergency
The Chiropractic Examining Board finds that preservation of the public peace, health, safety or welfare necessitates putting the rule amendments described into effect prior to the time the amendments would take effect if the agency complied with the notice, hearing and publication requirements established for rule-making in ch.
227, Stats. The facts warranting adoption of these rule amendments under s.
227.24, Stats., are as follows:
On December 19, 2002, the Chiropractic Examining Board adopted the national practical examination conducted by the National Board of Chiropractic Examiners as the board's practical examination for determining clinical competence in Wisconsin. The board has determined that the national practical examination is a better measure of competence than was the state examination previously administered by the board and that the public health, safety and welfare warrant that the national practical examination be instituted immediately. The rule changes herein conform the terminology used in the board's rule with the textual description of the national practical examination and resolve doubts about the examination grades issued to applicants who complete the national practical examination.
The national practical examination describes the examination parts in different terms than are used in s.
Chir 3.02, although the national practical examination covers the practice areas described in the existing rule. The rule amendments to s.
Chir 2.03 (2) (intro.) resolve this difference.
This order deletes the reference in the board's current rule to passing “each part" of the examination. The national practical examination has one part and an applicant receives one grade for the part. In utilizing the national examination, the board approves the grading and grading procedures of the National Board of Chiropractic Examiners. Grade review procedures in s. Chir 2.09 are superfluous and the rule is repealed. The rule requiring reexamination is modified to avoid confusion over examination parts. The board is proceeding with promulgating these rule changes through a proposed permanent rule-making order.
Publication Date:
June 28, 2003
Effective Date:
June 28, 2003
Expiration Date:
November 25, 2003
Hearing Date:
October 16, 2003
Extension Through:
March 23, 2004
Employment Relations Commission
Finding of emergency
The Employment Relations Commission finds that an emergency exists and that rules are necessary for the immediate preservation of the public peace, health, safety or welfare. A statement of the facts constituting the emergency is as follows:
1. The Employment Relations Commission has a statutory responsibility in the private, municipal and state sectors for timely and peaceful resolution of collective bargaining disputes and for serving as an expeditious and impartial labor relations tribunal.
2. Effective July 26, 2003,
2003 Wisconsin Act 33 reduced the Employment Relations Commission's annual budget by $400,000 in General Program Revenue (GPR) and eliminated 4.0 GPR supported positions. These reductions lowered the Employment Relations Commission's annual base GPR funding level and the number of GPR supported positions by more than 16%.
Act 33 also abolished the Personnel Commission and transferred certain of the Personnel Commission's dispute resolution responsibilities to the Employment Relations Commission.
3.
2003 Wisconsin Act 33 increased the Employment Relations Commission's Program Revenue (PR) funding and positions by $237,800 and 2.0 PR positions respectively. The revenue to support these increases will be provided by increasing existing filing fees for certain dispute resolution services.
4. Unless the emergency rule making procedures of s.
227.24, Stats., are utilized by the Employment Relations Commission to provide the increased filing fee revenue needed to support the 2.0 PR positions, the Commission's ability to provide timely and expeditious dispute resolution services will be significantly harmed.
The emergency rules increase existing filing fees for Commission dispute resolution services in amounts necessary to fund 2.0 Program Revenue positions as authorized by
2003 Wisconsin Act 33.
Publication Date:
August 25, 2003
Effective Date:
September 15, 2003
Expiration Date:
February 12, 2004
Hearing Date:
November 20, 2003
Extension Through:
April 11, 2004
Gaming
Rules adopting repealing
s. Game 23.02 (2) of the Wisconsin Administrative Code, relating to the computation of purses.
Finding of emergency
The Wisconsin Department of Administration finds that an emergency exists and that a rule is necessary in order to repeal an existing rule for the immediate preservation of the public welfare. The facts constituting the emergency are as follows:
Section
Game 23.02 (2) was created in the Department's rulemaking order (03-070). The Department is repealing this section due to the unforeseen hardship that it has created on the Wisconsin racetracks. This financial hardship presents itself in multiple ways. The racetracks rely on an outside vendor to compute the purses earned by all individuals. The vendor produces a similar system for most greyhound racetracks in the country. The purses are generated by the amount of money wagered on all races over a period of time. The current system does not provide for bonus purses to be paid out based upon the residency of certain owners. The current system would have to be reprogrammed at a significant cost to the racetracks. Although the bonus purses could be calculated and paid without a computer, it would create excessive clerical work that would also be costly to the racetracks.
Additionally, Geneva Lakes Greyhound Track committed to paying a minimum payout of purses to the greyhound and kennel owners that race in Delavan. Geneva Lakes Greyhound Track will supplement out of their own money any purse amount that does not exceed the minimum payout. As a result of paying the bonus purse to Wisconsin owned greyhounds, the variance between the actual purse and the minimum purse is increased and the financial liability to the racetrack is increased. Since this supplement is voluntary, the racetrack has indicated that it will probably have to cease the supplemental purses to the participants. This would result in reduced payments to the vast majority of the kennel owners and greyhound owners participating at the racetrack.
In creating this rule, the Department did not intend to create the disadvantages caused by this rule.
Publication Date:
January 8, 2004
Effective Date:
January 8, 2004
Expiration Date:
June 6, 2004
Hearing Date:
March 16, 2004
Health and Family Services
(Medical Assistance, Chs. HFS 100—)
Rules adopted revising
chs. HFS 101 to 107, relating to the Medicaid Family Planning Demonstration Project.
Finding of emergency
The Department of Health and Family Services finds that an emergency exists and that the rules are necessary for the immediate preservation of the public peace, health, safety or welfare. The facts constituting the emergency are as follows:
On June 25, 1999, the Department submitted a request for a waiver of federal law to the Centers for Medicare and Medicaid Services (CMS), the agency within the United States Department of Health and Human Services that controls states' use of Medicaid funds. On June 14, 2002, the Centers for Medicaid and Medicare granted the waiver, effective January 1, 2003. The waiver allows the state to expand Medicaid services by providing coverage of family planning services for females of child-bearing age who would not otherwise be eligible for Medicaid coverage. Under the waiver, a woman of child-bearing age whose income does not exceed 185% of the federal poverty line will be eligible for most of the family planning services currently available under Medicaid, as described in s.
HFS 107.21. Through this expansion of coverage, the Department hopes to reduce the number of unwanted pregnancies in Wisconsin.
Department rules for the operation of the Family Planning Demonstration Project must be in effect before the program begins. The program statute, s.
49.45 (24r) of the statutes, became effective on October 14, 1997. It directed the Department to request a federal waiver of certain requirements of the federal Medicaid Program to permit the Department to implement the Family Planning Demonstration Project not later than July 1, 1998, or the effective date of the waiver, whichever date was later. After CMS granted the waiver, the Department determined that the Family Planning Demonstration Project could not be implemented prior to January 1, 2003, and CMS approved this starting date. Upon approval of the waiver, the Department began developing policies for the project and subsequently the rules, which are in this order. The Department is publishing the rules by emergency order so the rules take effect in February 2003, rather than at the later date required by promulgating permanent rules. In so doing, the Department can provide health care coverage already authorized by CMS as quickly as possible to women currently not receiving family planning services and unable to pay for them. The Department is also proceeding with promulgating these rule changes on a permanent basis through a proposed permanent rulemaking order.
Publication Date:
January 31, 2003
Effective Date:
January 31, 2003*
Expiration Date:
June 30, 2003
Hearing Dates:
April 25 & 28, 2003
* The Joint Committee for Review of Administrative Rules suspended this emergency rule on April 30, 2003
Insurance
The office of the commissioner of insurance adopts an order to create
s. Ins 8.49, Wis. Adm. Code, relating to Small Employer Uniform Group Health Application.
Finding of emergency
The Commissioner of Insurance finds that an emergency exists and that a rule is necessary for the immediate preservation of the public peace, health, safety, or welfare. Facts constituting the emergency are as follows:
The rule and the uniform small employer application are required by statute to be available by August 1, 2003. Due to implementation of
45 CFR 164 of HIPAA privacy provisions for covered entities, including health plans, and the commissioner's efforts to obtain clarification regarding authorization for release of personally identifiable health information provisions from the Office of Civil Rights a Division of Centers Medicare & Medicaid Services charged with enforcement of the privacy portions of HIPAA, it is not possible to complete the permanent rule process in time to meet the statutory requirement.
The first emergency rule was submitted and published on July 31, 2003, to meet the statutorily imposed deadline. However, subsequent to submission of the permanent rule by the Office, the legislative committees having jurisdiction over the rule requested the Office to modify the permanent rule. The notice requesting modification was received by the Office on December 18, 2003, less than 30 days from the date the emergency rule was set to expire.
Since it will not be possible to have the permanent rule finalized by December 29, 2003, and JCRAR was unable to grant an extension on the emergency rule, this rule is necessary for the immediate preservation of the public peace, health, safety, or welfare.
A hearing on the permanent rule was held on July 11, 2003, in accordance with s.
227.17, Stats., and the commissioner has had benefit of reviewing public comments and the clearinghouse report prior to issuing this emergency rule. A hearing on this emergency rule will be noticed and held within 45 days in accordance with ch.
227, Stats.
Publication Date:
January 7, 2004
Effective Date:
January 7, 2004
Expiration Date:
June 5, 2004
Natural Resources
(Fish, Game, etc., Chs. NR 1-)
Rules were adopted revising
ch. NR 10, relating to Chronic Wasting Disease (CWD) in Wisconsin.
Finding of emergency
The emergency rule procedure, pursuant to s.
227.24, Stats., is necessary and justified in establishing rules to protect the public health, safety and welfare. The state legislature has delegated to the department rule - making authority in
2001 Wisconsin Act 108 to control the spread of Chronic Wasting Disease (CWD) in Wisconsin. CWD, bovine tuberculosis and other forms of transmissible diseases pose a risk to the health of the state's deer herd and citizens and is a threat to the economic infrastructure of the department, the state, it's citizens and businesses. These restrictions on deer baiting and feeding need to be implemented through the emergency rule procedure to help control and prevent the spread of CWD, bovine tuberculosis and other forms of transmissible diseases in Wisconsin's deer herd.
Publication Date:
September 11, 2003
Effective Date:
September 11, 2003
Expiration Date:
February 8, 2004
Hearing Date:
October 13, 2003
Extension Through:
April 7, 2004
Public Instruction
Rules were adopted revising
ch. PI 5, relating to high school equivalency diplomas and certificates of general educational development.
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 peace, health, safety or welfare. A statement of the facts constituting the emergency is:
1. The GED Testing Service modified the GED test content and the standard score scale used to determine passing scores dramatically from the previous test series causing an inconsistency with the current scoring requirements under ch.
PI 5. The emergency rule reflects the current national GED test score of not less than 410 on each of the five tests, with an average of 450 on the five tests in the battery.
2.
2003 Wisconsin Act 33, the 2003-2005 biennial budget, eliminated general purpose revenue (GPR) used to support GED program administration and created a provision allowing the state superintendent to promulgate rules establishing fees for issuing a GED certificate or HSED. Act 33 presumed that GED program costs previously funded by GPR would be paid for by revenue fees generated as of January 1, 2004.
The department is issuing this emergency rule in order to ensure compliance with the more rigorous score standards and to ensure adequate funding for the program.
A corresponding permanent rule,
Clearinghouse Rule 03-102, was developed with public hearings held on December 11 and 15, 2003. The department has had the benefit of reviewing public comments and the Clearinghouse Report prior to issuing this emergency rule.
Publication Date:
January 2, 2004
Effective Date:
January 2, 2004
Expiration Date:
May 31, 2004
Hearing Date:
February 13, 2004
Workforce Development
(Labor Standards, Chs.
DWD 270-
279)
Rules adopted revising
ss. DWD 274.015 and 274.03 and creating
s. DWD 274.035, relating to overtime pay for employees performing companionship services.
Finding of emergency
The Department of Workforce Development finds that an emergency exists and that the attached rule is necessary for the immediate preservation of the public peace, health, safety, or welfare. A statement of facts constituting the emergency is:
On January 21, 2004, pursuant to s.
227.26(2)(b), Stats., the Joint Committee for Review of Administrative Rules directed the Department of Workforce Development to promulgate an emergency rule regarding their overtime policy for nonmedical home care companion employees of an agency as part of ch.
DWD 274.
Analysis Prepared by the Department of Workforce Development
Section
103.02, Stats., provides that “no person may be employed or be permitted to work in any place of employment or at any employment for such period of time during any day, night or week, as is prejudicial to the person's life, health, safety or welfare." Section
103.01 (3), Stats., defines “place of employment" as “any manufactory, mechanical or mercantile establishment, beauty parlor, laundry, restaurant, confectionary store, or telegraph or telecommunications office or exchange, or any express or transportation establishment or any hotel."
Chapter
DWD 274 governs hours of work and overtime. Section
DWD 274.015, the applicability section of the chapter, incorporates the statutory definition of “place of employment" and limits coverage of the chapter to the places of employment delineated in s.
103.01 (3), Stats., and various governmental bodies. Section
DWD 274.015 also provides that the chapter does not apply to employees employed in domestic service in a household by a household.
Section
103.02, Stats., directs that the “department shall, by rule, classify such periods of time into periods to be paid for at the rate of at least one and one-half times the regular rates." Under s.
DWD 274.03, “each employer subject to this chapter shall pay to each employee time and one-half the regular rate of pay for all hours worked in excess of 40 hours per week." Section
DWD 274.04 lists 15 types of employees who are exempt from this general rule and s.
DWD 274.08 provides that the section is inapplicable to public employees.
Nonmedical home care companion employees who are employed by a third-party, commercial agency are covered by the overtime provision in s.
DWD 274.03. Section
DWD 274.03 applies to all employees who are subject to the chapter and not exempt under ss.
DWD 274.04 or
274.08. The chapter applies to companion employees of a commercial agency because under s.
DWD 274.015 a commercial agency is considered a mercantile establishment. Section
DWD 270.01 (5) defines a mercantile establishment as a commercial, for-profit business. The chapter does not apply to companion employees of a nonprofit agency or a private household. In addition, none of the exemptions to the overtime section in ss.
DWD 274.04 or
274.08 apply to companion employees of a commercial agency.
The Joint Committee for the Review of Administrative Rules has directed DWD to promulgate an emergency rule regarding the overtime policy for nonmedical home care companion employees of an agency. This provision is created at s.
DWD 274.035 to say that employees who are employed by a mercantile establishment to perform companionship services shall be subject to the overtime pay requirement in s.
DWD 274.03. “Companionship services" is defined as those services which provide fellowship, care, and protection for a person who because of advanced age, physical infirmity, or mental infirmity cannot care for his or her own needs. Such services may include general household work and work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. The term “companionship services" does not include services relating to the care and protection of the aged or infirm person that require and are performed by trained personnel, such as registered or practical nurses.
This order also repeals and recreates the applicability of the chapter section and the overtime section to write these rules in a clearer format. There is no substantive change in these sections.
Publication Date:
March 1, 2004
Effective Date:
March 1, 2004
Expiration Date:
July 29, 2004
Workforce Development
(Public Works Construction, Chs.
DWD 290-
294)
Rules adopted amending
ss. DWD 290.155 (1), 293.02 (1), and 293.02 (2), 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 that 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 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 18, 2003
Effective Date:
January 1, 2004
Expiration Date:
May 30, 2004
Hearing Date:
February 19, 2004
