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.
Elections Board
Rules adopted creating s. ElBd 1.395, relating to the use of funds in a federal campaign committee that has been converted to a state campaign committee and relating to the use of those converted funds whose contribution to the federal committee would not have been in compliance with Wisconsin law if the contribution had been made directly to a state campaign committee.
Finding of Emergency
The Elections Board finds that an emergency exists in the recent change in federal law that permits the transfer of the funds in a federal candidate campaign committee's account to the candidate's state campaign committee account and finds 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 as follows:
Since the Bi-Partisan Campaign Reform Act of 2002 (BICRA), transfers of funds from a federal campaign committee to a state campaign committee had not been authorized under federal law. In November, 2004, Congress amended the Federal Election Campaign Act, (H.R. 4818, s.532(3) and 532(4), to permit the transfer of a federal candidate's campaign committee's funds to the candidate's state campaign committee, if state law permitted, and subject to the state law's requirements and restrictions.
Because of Congress' action in November, 2004, money which had not been available to a state committee under BICRA, and which might not have qualified for use for political purposes in a state campaign because of its source or because of other noncompliance with state law, could now be transferred to a state committee, if state law permitted. Wisconsin law, under the Board's current rule, ElBd 1.39, Wis. Adm. Code, allows for conversion of federal campaign committees, and their funds, to a state campaign committee without regard to the source of those funds and without regard to contribution limitations.
Restricting the use of such money to that money which has been contributed to the candidate's federal committee, under circumstances in which the contribution would have complied with Wisconsin law if it had been given directly to the Wisconsin campaign committee, is found to be in the public interest.
Publication Date:
February 3, 2005
Effective Date:
February 3, 2005*
Expiration Date:
July 3, 2005
Hearing Date:
May 18, 2005
* On February 9, 2005, the Joint Committee for Review of Administrative Rules suspended this emergency rule.
Health and Family Services (2)
(Health, Chs.
HFS 110—)
1.
Rules adopted revising
ch. HFS 113, relating to certification of first responders.
Finding of emergency
The Department of Health and Family Services finds that an emergency exists and that the adoption of an emergency rule is necessary for the immediate preservation of the public, health, safety and welfare. The facts constituting this emergency are:
Currently, first responders are restricted in their provision of emergency medical services (EMS) to performing defibrillation. These amended rules are primarily being published by emergency order to allow first responders to also use the following 2 potentially life-saving skills:
1.
Non-visualized airway, to treat patients who are either not breathing or their airway has been compromised due to trauma or other means; and
2.
The administration of epinephrine, for patients who have suffered a severe allergic reaction.
The Department intends to immediately follow this emergency rule with an identical proposed permanent rulemaking order.
Publication Date:
June 6, 2005
Effective Date:
June 6, 2005
Expiration Date:
November 3, 2005
Hearing Date:
June 27, 2005
Exemption from finding of emergency
Section
149.143 (4), Stats., permits the Department to promulgate rules required under s.
149.143 (2), Stats., by using emergency rulemaking procedures, except that the Department is specifically exempted from the requirement under s.
227.24 (1) and
(3), Stats., that it make a finding of emergency. These are the emergency rules. Department staff consulted with the Health Insurance Risk-Sharing Plan (HIRSP) Board of Governors on April 22, 2005 regarding the rules, as required by s.
149.20, Stats.
The State of Wisconsin in 1980 established a Health Insurance Risk-Sharing Plan (HIRSP). HIRSP provides major medical health insurance for persons who are covered under Medicare because they are disabled, persons who have tested positive for HIV, and persons who have been refused coverage or who cannot get coverage at an affordable price in the private health insurance market because of their mental or physical health conditions. Also eligible for coverage are persons who recently lost employer-sponsored insurance coverage if they meet certain criteria. According to state law, HIRSP policyholder premium rates must fund sixty percent of plan costs, except for costs associated with premium and deductible reductions. The remaining funding for HIRSP is to be provided by insurer assessments and adjustments to provider payment rates, in co-equal amounts.
HIRSP Plan 1 is for policyholders that do not have Medicare. Ninety-one percent of the 18,530 HIRSP policies in effect in February 2005 were enrolled in Plan 1. Plan 1 has Option A ($1,000 deductible) or Option B ($2,500 deductible). The rates for Plan 1 contained in this rulemaking order increase an average of 15.0% for policyholders not receiving a premium reduction. The average rate increase for policyholders receiving a premium reduction is 12.1%. Rate increases for individual policyholders within Plan 1 range from 7.0% to 16.8%, depending on a policyholder's age, gender, household income, deductible and zone of residence within Wisconsin. By law, Plan 1 rate increases reflect and take into account the increase in costs associated with Plan 1 claims.
HIRSP Plan 2 is for persons eligible for Medicare because of a disability or because they become age-eligible for Medicare while enrolled in HIRSP. Plan 2 has a $500 deductible. Nine percent of the 18,530 HIRSP policies in effect in February 2005 were enrolled in Plan 2. The rate increases for Plan 2 contained in this rulemaking order increase an average of 20.3% for policyholders not receiving a premium reduction. The average rate increase for policyholders receiving a premium reduction is 17.3%. Rate increases for individual policyholders within Plan 2 range from 11.2% to 22.2%, depending on a policyholder's age, gender, household income and zone of residence within Wisconsin. Plan 2 premiums are set in accordance with the authority and requirements set out in s.
149.14 (5m), Stats.
Publication Date:
June 15, 2005
Effective Date:
July 1, 2005
Expiration Date:
November 28, 2005
Hearing Date:
July 11, 2005
Insurance
Rules adopted revising
ch. Ins 17, relating to annual patients compensation fund and mediation fund fees for the fiscal year beginning July 1, 2005.
Finding of emergency
The commissioner of insurance (commissioner) finds that an emergency exists and that promulgation of an emergency rule is necessary for the preservation of the public peace, health, safety or welfare. The facts constituting the emergency are as follows:
Actuarial and accounting data necessary to establish fund fees is first available in December of each year. It is not possible to complete the permanent fee rule process in time for the injured patients and families compensation fund (fund) to bill health care providers in a timely manner for fees applicable to the fiscal year beginning July 1, 2005.
The commissioner expects that the permanent rule corresponding to this emergency rule, clearinghouse No. 05-028, will be filed with the secretary of state in time to take effect October 1, 2005 Because the fund fee provisions of this rule first apply on July 1, 2005, it is necessary to promulgate the rule on an emergency basis. A hearing on the permanent rule, pursuant to published notice thereof, was held on May 17, 2005.
Publication Date:
June 27, 2005
Effective Date:
July 1, 2005
Expiration Date:
November 28, 2005
Natural Resources (3)
(Fish, Game, etc., Chs. NR 1—)
1.
Rules adopted revising
ch. NR 10, relating to the 2005 migratory game bird seasons.
Finding of emergency
The emergency rule procedure, pursuant to s.
227.24, Stats., is necessary and justified in establishing rules to protect the public welfare. The federal government and state legislature have delegated to the appropriate agencies rule-making authority to control the hunting of migratory birds. The State of Wisconsin must comply with federal regulations in the establishment of migratory bird hunting seasons and conditions. Federal regulations are not made available to this state until mid-August of each year. This order is designed to bring the state hunting regulations to conformity with the federal regulations. Normal rule-making procedures will not allow the establishment of these changes by September 1. Failure to modify our rules will result in the failure to provide hunting opportunity and continuation of rules which conflict with federal regulations.
Publication Date:
August 31, 2005
Effective Date:
August 31, 2005
Expiration Date:
January 28, 2006
Hearing Date:
October 17, 2005
2.
Rules adopted revising
chs. NR 46 and 47, relating to the administration of the Managed Forest Law and the Wisconsin Forest Landowner Grant Program.
The emergency rule procedure, pursuant to s.
227.24, Stats., is necessary and justified in establishing rules that govern the managed forest law. The state legislature has delegated the appropriate agencies rule-making authority to administer the managed forest law. State statute governing the managed forest law was amended on July 25, 2005 with an initial applicability date of June 1, 2005. This order is designed to bring the administrative code into conformity with the state statutes that govern the managed forest law. Normal rule-making procedures will not allow the establishment of changes necessary to continue processing petitions for managed forest law received from June 1, 2005 to July 1, 2005 (petition deadline). Failure to process these petitions will result in a delay in designation of these lands as managed forest land and a failure to meet statutory deadlines for designation.
Publication Date:
October 4, 2005
Effective Date:
October 4, 2005
Expiration Date:
March 3, 2006
Hearing Date:
October 19, 2005
3.
Rules were adopted amending
s. NR 19.50 relating to hunter education fees.
The emergency rule procedure, pursuant to s.
227.24, Stats., is necessary and justified in establishing rules to regulate fees for safety education courses. The state legislature has delegated to the appropriate agencies rule making authority to regulate and administer these courses. The department must comply with state law. This order is desired to provide necessary funding for continuation of our quality hunter education program. Normal rule-making procedures will not allow the establishment of the changes by September 1. Failure to modify our rules will result in lost revenues and added expense to the hunter education program.
Publication Date:
October 3, 2005
Effective Date:
October 3, 2005
Expiration Date:
March 2, 2006
Hearing Date:
October 12, 2005
Natural Resources (2)
(Environmental Protection - Water Regulation, Chs. NR 300—)
1.
Rules adopted revising
ch. NR 326, relating to regulation of piers, wharves, boat shelters, boat hoists, boat lifts and swim rafts in navigable waterways.
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 Wisconsin Legislature recently enacted
2003 Wisconsin Act 118, to streamline the regulatory process for activities in public trust waters. The state has an affirmative duty to administer the new law in a manner consistent with the public trust responsibilities of the State of Wisconsin under Article IX, Section I of the Wisconsin Constitution.
2003 Act 118 identifies certain activities that may be undertaken in public trust waters exempt from a permit, or under a general permit. Certain activities may not be undertaken in waters that are defined as “areas of special natural resource interest" or at other locations where the activity would cause detrimental impacts on public rights and interests in navigable waters. Without emergency rules to aid in administering the new law, the following severe problems will occur:
Until general permits are created by rule, any activity which is not exempt requires an individual permit with an automatic 30-day public notice. The required 30-day comment period will unnecessarily delay hundreds of construction projects that otherwise could go ahead with specified conditions for protecting lakes and streams (for example, all new riprap and culvert applications currently require public notices).
Unclear wording of exemptions currently puts property owners, contractors and consultants at risk of violation. Without clear procedures and standards established by emergency rule, many more people may request exemption determinations, slowing the decisions on individual permit applications.
Wording of exemptions and temporary grading jurisdiction puts lakes and streams at risk. Without standards as intended and described in the new law, exempted activities and grading along shorelines will cause inadvertent but permanent destruction of fish and wildlife habitat, loss of natural scenic beauty and reduced water quality. Rights of neighboring property owners may also be harmed. Cumulatively over one or two construction seasons, these impacts will have immediate and permanent effects on Wisconsin's water-based recreation and tourism industry.
To carry out the intention of the Legislature that
2003 Act 118 to speed decision-making but not diminish the public trust in state waters, these emergency rules are required to establish definitions, procedures and substantive standards for exemptions, general permits and jurisdiction under the new law.
Publication Date:
April 19, 2004
Effective Date:
April 19, 2004*
Expiration Date:
September 16, 2004
Hearing Date:
May 19, 2004
*On June 24, 2004, the Joint Committee for Review of Administrative Rules suspended this emergency rule.
2.
Rules adopted creating
ch. NR 328, subch. III, relating to shore erosion control on rivers and streams.
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 Wisconsin Legislature enacted
2003 Wisconsin Act 118 to streamline the regulatory process for activities in public trust waters. The state has an affirmative duty to administer the law in a manner consistent with the public trust responsibilities of the State of Wisconsin under Article IX, Section I of the Wisconsin Constitution.
Act 118 identifies certain activities that may be undertaken as exempt from a permit, or under a general permit. There are no statutory exemptions for shore protection on rivers and streams. Without emergency rules to create general permits, all shore protection projects on rivers and streams require an individual permit with an automatic 30-day public notice. The required 30-day comment period will unnecessarily delay projects that otherwise could go ahead with prescribed conditions established in a general permit.
To carry out the intention of Act 118 to speed decision-making but not diminish the public trust in state waters, these emergency rules are required to establish general permits to be in effect for the 2005 construction season, with specific standards for shore erosion control structures on rivers and streams.
Publication Date:
April 8, 2005
Effective Date:
May 1, 2005
Expiration Date:
September 28, 2005
Hearing Date:
May 16, 2005
Public Instruction (2)
1.
Rules adopted revising
ch. PI 35, relating to the private school proration process.
Finding of emergency
The department anticipates the program reaching the 15% cap in the 2005-06 school year. Because the department is required to prorate the number of spaces available at each participating private school, the prorating process must be in place as soon as possible to provide adequate notice to participating schools and parents. Further, procedures must be in place prior to the beginning of the 2005-06 school year to avoid removing pupils from private schools that have lost seats after the prorating process is completed.
Publication Date:
August 1, 2005
Effective Date:
August 1, 2005
Expiration Date:
December 29, 2005
Hearing Date:
August 31, 2005
2.
Rules adopted amending emergency rules revising
ch. PI 35, relating to prorating under 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. A statement of the facts constituting the emergency is:
The department anticipates the program reaching the 15% cap in the 2005-06 school year. Because the department is required to prorate the number of spaces available at each participating private school, the prorating process must be in place as soon as possible to provide adequate notice to participating schools and parents.
The rules contained in this order do not apply after December 29, 2005, unless an extension is granted under s.
227.24 (2), Stats.
Publication Date:
August 9, 2005
Effective Date:
August 9, 2005
Expiration Date:
December 29, 2005
Veterans Affairs (2)
1.
Rules adopted repealing
s. VA 2.04 and repealing and recreating
s. VA 2.02, relating to the veterans tuition reimbursement program.
Exemption From Finding of emergency
The legislature has authorized the department to promulgate rules for the administration of the veterans tuition reimbursement program under the emergency rule procedure without providing evidence of the necessity of the preservation of the public peace, health, safety, or welfare at sec. 9153 (1) of
2005 Wis Act 25.
Publication Date:
August 2, 2005
Effective Date:
August 2, 2005
Expiration Date:
December 30, 2005
Hearing Date:
October 21, 2005
2.
Rules adopted repealing and recreating
s. VA 2.01, relating to the assistance to needy veterans program.
Exemption From Finding of emergency
The legislature has authorized the department to promulgate rules for the administration of the assistance to needy veterans program under the emergency rule procedure without providing evidence of the necessity of the preservation of the public peace, health, safety, or welfare at sec. 9135 (3k) of
2005 Wis Act 25.
Publication Date:
August 2, 2005
Effective Date:
August 2, 2005
Expiration Date:
December 30, 2005
Hearing Date:
October 21, 2005
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
* On April 28, 2004, the Joint Committee for Review of Administrative Rules suspended s.
DWD 274.035 created as an emergency rule.
