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 revising
chs. ATCP 10 and 11, relating to a poultry flock certification program.
Finding of Emergency
(1) The Wisconsin department of agriculture, trade and consumer protection (“DATCP") administers Wisconsin's animal health and disease control programs, including the national poultry improvement program (NPIP). The NPIP is designed to prevent the spread of
Salmonella pullorum, fowl typhoid and, in the case of turkeys,
Mycoplasma gallispepticum. NPIP is governed by
9 CFR 145 and
147. NPIP enrollment is voluntary, but non-enrolled flocks are subject to certain movement restrictions.
(2) Current DATCP rules prohibit the import, use, sale or movement of poultry, farm-raised game birds or their eggs for breeding or hatching unless they originate from flocks that are enrolled in NPIP and meet NPIP standards. Current DATCP rules also prohibit the exhibition of poultry or farm-raised game birds at a fair, exhibition or swap meet unless they originate from an NPIP “pullorum-typhoid clean" or equivalent flock, or are individually tested for pullorum-typhoid.
(3) NPIP is primarily designed for large commercial flocks that move birds or eggs in interstate commerce. NPIP requires yearly testing of all sexually mature birds, and routine inspections. Fees for enrollment in the program differ based on flock size and purpose, and range from $20 to $200. NPIP enrollment and testing may be cost-prohibitive for small flocks. Current rules restrict market access and exhibition by small producers of poultry and farm-raised game birds, and impose an unnecessary burden on those producers. Some small producers may be tempted to ignore or subvert current rules, in order to market or exhibit their poultry or farm-raised game birds. That may, in turn, create unnecessary risks of disease.
(4) It is urgently necessary to provide alternative disease monitoring options for small producers of poultry and farm-raised game birds, so that those producers can legally and economically move, market and exhibit their birds. The current lack of alternatives creates an unnecessary economic hardship, and an unnecessary risk of disease spread.
(5) DATCP has proposed rules which would create practical disease monitoring alternatives for small producers of poultry and farm-raised game birds. DATCP is proceeding to adopt those rules by normal rulemaking procedures. However, normal rulemaking procedures require at least a year to complete. A temporary emergency rule is needed to eliminate unnecessary hardship and risk in the short term, and to provide practical and effective disease monitoring for this year's fair and exhibition season.
Publication Date:
March 3, 2006
Effective Date:
March 3, 2006
Expiration Date:
July 31, 2006
Hearing Date:
March 31, 2006
Commerce
(Commercial Buildings, Chs.
Comm 61-
65)
Rules adopted revising
ch. Comm 62, relating to automatic fire suppression for student housing facilities serving colleges and universities.
Finding of Emergency
Department of Commerce finds that an emergency exists within the state of Wisconsin and that adoption of a rule is necessary for the immediate preservation of the public health, safety and welfare. A statement of the facts constituting the emergency is as follows.
1. In accordance with sections
101.14 (4) (b) 3., Stats., and the provisions under
2005 Wisconsin Act 78, the department has the responsibility to promulgate rules requiring the installation of automatic fire sprinkler systems in various student housing facilities serving colleges and universities.
2.
2005 Wisconsin Act 78 was published on January 6, 2006, making January 7, 2006 the effective date of the Act.
3. Various provisions of the Act specified the effective date as the trigger to install the automatic fire sprinkler systems.
4. The department recognizes that promulgating this emergency rule will incorporate under the commercial building code, chapters, Comm 61 to 65, specific design and construction standards for new student housing facilities that are consistent with the intent of the Act.
5. The department recognizes that without promulgating this emergency rule, there could be confusion in design of any new student housing to be constructed in the very near future. The omission of the automatic fire sprinkler system during the initial design and construction would potentially place lives at greater risk.
6. In addition, the department recognizes that without promulgating this emergency rule, the confusion in omitting the automatic fire sprinkler system would result in additional costs to retrofit the installation of the system in order to fulfill the statutory obligation based upon the effective date of the Act.
Publication Date:
March 4, 2006
Effective Date:
March 4, 2006
Expiration Date:
August 1, 2006
Hearing Date:
May 15, 2006
Corrections
A rule was adopted creating
s. DOC 332.19, relating to a sex offender registration fee.
Finding of Emergency
The department of corrections finds that an emergency exists and that rules are necessary for the immediate preservation of public peace, health, safety and welfare. A statement of the facts constituting the emergency is: Under
2005 WI Act 25, the legislature authorized the department to establish a sex offender registration fee. If the rule is not created promptly and immediately, the department will not be able to collect the fees which are to be used to offset the costs of monitoring probationers, parolees, or persons on extended supervision, which could result in a lessening of supervision due to budget limitations.
The purpose of the emergency rule is to establish an annual sex offender registration fee to partially offset the costs of monitoring persons who are on probation, parole, or extended supervision. The permanent rule process has been started. However, the permanent rule process will take approximately nine months to complete. Emergency rules are necessary to respond promptly to the collection of fees while permanent rules are being developed.
Publication Date:
June 8, 2006
Effective Date:
June 8, 2006
Expiration Date:
November 5, 2006
Hearing Date:
July 18, 2006
[See Notice this Register]
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, s. 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.
Emergency Management
Rule adopted creating
ch. WEM 7, relating to disaster assistance for local governments.
Finding of Emergency
The Wisconsin Division of Emergency Management 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 an emergency is as follows:
1. The
2005 Wis. Act 269 created the major disaster assistance program under Wis. Stats. §
166.03 (2) (b) 9. An annual appropriation of $3,000,000 SEG A for fiscal years 2005-06 and 2006-07 was established under Wis. Stats. §
20.465 (3) (b) (s) from the petroleum inspection fund. These funds were provided to make payments to local units of government for damages and costs incurred as a result of a major catastrophe. This Act was made retroactive to January 1, 2005.
2. The Act requires the Wisconsin Department of Military Affairs, through its Division of Emergency Management, to promulgate rules to implement and establish the application process and the criteria to determine eligibility under the major disaster assistance program. The Division will immediately begin the permanent rule-making process for establishing administrative rules for these payments, but cannot complete the required hearings and review of these rules prior to the lapse of funds retained in the major disaster assistance appropriation for fiscal year 2005-06.
3. To ensure that appropriated funds for fiscal year 2005-06 are timely paid to local governmental units for damages and eligible costs incurred as a direct result of major catastrophes, emergency administrative rules must be established immediately.
Publication Date:
June 8, 2006
Effective Date:
June 8, 2006
Expiration Date:
November 5, 2006
Natural Resources (4)
(Fish, Game, etc., Chs.
NR 1—)
1.
Rules were adopted amending
ch. NR 25 relating to commercial fishing for lake trout in Lake Superior.
Finding of Emergency
The Department of Natural Resources finds that an emergency exists and the foregoing rules are necessary for the immediate preservation of the public peace, health, safety or welfare. A statement of facts constituting the emergency is: The waters of Lake Superior were not part of the extensive off-reservation treaty rights litigation known as the Voigt case. The parties stipulated that the Lake Superior rights would be dealt with, to the extent possible, by agreement rather than litigation. This rule represents the implementation of the most recent negotiated amendments to the agreement between the State and the Red Cliff and Bad River Bands. In order to comply with the terms of the agreement, the State must change its quotas and commercial fishing regulations at the earliest possible date. Failure by the State to do so will not only deprive state fishers of increased harvest opportunities available under the agreement, but could also jeopardize the agreement, putting the entire Lake Superior fishery at risk of litigation.
Publication Date:
December 15, 2005
Effective Date:
December 15, 2005
Expiration Date:
May 14, 2006
Hearing Date:
January 13, 2006
Extension Through:
July 12, 2006
2.
Rules were adopted revising
s. NR 10.25, relating to the issuance of turkey hunting permits.
Plain Language Analysis
This rule change will allow the department to issue turkey tags remaining after the initial permit drawing in accordance with state statute, which is first-come, first-served. Additionally, this rule updates code language to accurately describe how permits are currently issued (by zone and by time period) and establishes that no person may obtain more than one turkey carcass tag per day.
Exemption from finding of emergency
2005 Wisconsin Act 25, allowed the department to utilize the procedure under s.
227.24, Stats., to promulgate rules implementing s.
29.164, Stats., for the period before the date on which permanent rules take effect, but may not exceed the period authorized under s.
227.24 (1) (c) and
(2), Stats. Notwithstanding s.
227.24 (1) (a),
(2) (b), and
(3), Stats., the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.
Publication Date:
February 13, 2006
Effective Date:
March 1, 2006
Expiration Date:
July 29, 2006
Hearing Date:
April 10, 2006
3.
Rules were adopted revising
ch. NR 47, relating to the forestry research and development grant program.
Finding of Emergency
The emergency rule procedure, pursuant to s.
227.24, Stats., is necessary and justified in establishing rules to regulate and administer grant programs. The State legislature has delegated responsibility for rule-making to the Department of Natural Resources. Normal rule-making procedures will not allow the establishment of the rules in time to allocate funds during this fiscal year. Failure to establish rules during FY06 will result in lost opportunity for Wisconsin interests to compete for federal grants that improve the public health, public good and the environment through the development of alternative renewable energy and biochemical sources from forestry biomass.
Publication Date:
March 16, 2006
Effective Date:
March 16, 2006
Expiration Date:
August 13, 2006
Hearing Date:
April 24 & 26, 2006
4.
Rules were adopted creating
s. NR 45.04 (1) (g), relating to regulation of firewood entering and exiting department lands and affecting small businesses.
Finding of Emergency
It is important to have restrictions on out-of-state firewood entering department lands in place this camping season due to recent developments in efforts to eradicate and quarantine emerald ash borer in the areas where it is currently established. In Michigan, Ohio, Indiana and Ontario, eradication programs are being dramatically scaled back or abandoned entirely for this summer. A recent audit of quarantine efforts in Michigan where emerald ash borer is most abundant and widespread is critical and faults their program for lax enforcement and poor education of the public to the dangers of moving firewood. Given this situation, a need for an external quarantine to protect Wisconsin forest resources, industry, and community trees becomes obvious. The Wisconsin Department of Agriculture, Trade and Consumer Protection has proposed an external quarantine on host material of emerald ash borer and three other invasive pests and diseases and our firewood regulation would help support this effort, provide an opportunity for education of the public and reduce one of the reasons people move firewood: for use while camping.
Publication Date:
March 27, 2006
Effective Date:
April 1, 2006
Expiration Date:
August 29, 2006
Hearing Date:
July 5, 2006
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
ss. NR 328.31 to 328.36, 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 2006 construction season, with specific standards for shore erosion control structures on rivers and streams.
Publication Date:
May 5, 2006
Effective Date:
May 8, 2006
Expiration Date:
October 4, 2006
Hearing Date:
June 13, 2006
Regulation and Licensing
Rules were adopted creating
chs. RL 164 and 165, relating to a code of conduct and renewal requirements for substance abuse professionals.
Plain language analysis
The purpose of this emergency rule is to create a code of conduct to facilitate assumption of disciplinary proceedings as part of the transfer of the regulation of substance abuse professionals from the Department of Health and Family Services to the Department of Regulation and Licensing. The emergency rule also sets forth the requirements for renewal.
The Department of Regulation and Licensing must promulgate this emergency rule for the period before the effective date of the permanent rules as promulgated under Wis. Stats. s.
440.88 (3). Under the previous regulatory scheme, the Department of Health and Family Services and the Wisconsin Certification Board had established a code of conduct and restrictions on late renewals. This emergency rule continues the applicability of the rules until the department, with the advice of the Advisory Committee, can establish permanent rules.
Exemption from finding of emergency
Section
9140 (1q) of
2005 Wisconsin Act 25 states in part: “Notwithstanding section
227.24 (1) (a),
(2) (b), and
(3) of the statutes, the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection."
Publication Date:
April 15, 2006
Effective Date:
April 15, 2006
Expiration Date:
September 12, 2006
Hearing Date:
June 27, 2006
Transportation
Rules adopted creating
ch. Trans 515, relating to contractual service procurement.
Exemption from finding of emergency
The Legislature, by Section
8 of
2005 Wis. Act 89, provides an exemption from a finding of emergency for the adoption of the rule.
Analysis Prepared by the Department of Transportation
The proposed rule requires a cost benefit analysis before procuring engineering or other specialized services under s.
84.01 (13), Stats., in excess of $25,000 when those services are normally performed by state employees. The required analysis includes a comparison between the costs of contracting out and performing the services with state employees. The analysis also considers other subjective factors such as timeliness, quality and technical expertise.
Publication Date:
July 1, 2006
Effective Date:
July 1, 2006
Expiration Date:
November 28, 2006
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 a 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.
