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.
Administration
Rules adopted revising
ch. Adm 10, relating to cost benefit analyses of contractural services.
Exemption from Finding of Emergency
Section
8(2) of
2005 Wisconsin Act 89 requires the Department of Administration to promulgate rules required under ss.
16.004 (1),
16.705 (2) and
227.11 Stats., by using the emergency rulemaking procedure under s.
227.24, Stats., except that the department is not required to provide evidence that the emergency rule is necessary for the preservation of public peace, health, safety or welfare and is not required to provide a finding of emergency.
Plain language analysis
The department intends to promulgate a rule as required by Act 89 to require a cost-benefit analysis to be completed for each bid or request for proposal to compare the cost of contracting for services versus providing the services with state employees.
Currently, all state agencies and UW System campuses may contract for services between $25,000 and $200,000 if they can show that the services can be performed more economically or efficiently by such a contract than by state employees. Currently, if the contractual services would be greater than $200,000, the contracting agency must complete a more rigorous and detailed cost/benefit analysis to demonstrate that the services can be performed more economically or efficiently by such a contract than by state employees. This more rigorous and detailed analysis includes total cost, quality and nature of services required, specialized skills, time factors, risk factors and legal barriers. Act 89 requires agencies to conduct uniform cost-benefit analysis of each proposed contractual service procurement involving an estimated expenditure of more than $25,000 in accordance with standards prescribed in the rules. Cost benefit-analysis is defined to include total cost, quality, technical expertise and timeliness of a service.
Act 89 also requires agencies to review periodically, and before any renewal, the continued appropriateness of contracting under each services agreement involving an estimated expenditure of more than $25,000. Act 89 requires the department to complete an annual summary report of the cost benefit-analysis prepared by state agencies in the preceding fiscal year and recommendations for elimination of unneeded contractual service procurements and for the consolidation or resolicitation of existing contractual service procurements.
Publication Date:
July 1, 2006
Effective Date:
July 1, 2006
Hearing Date: August 11, 2006
Agriculture, Trade & Consumer Protection (2)
1.
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
Extension Through:
September 28, 2006
2.
Rules adopted revising
ch. ATCP 136, relating to mobile air conditioners; reclaiming or recycling refrigerant.
(1) The Wisconsin department of agriculture, trade and consumer protection (“DATCP") administers s.
100.45, Stats. DATCP has adopted rules under ch.
ATCP 136 to implement s.
100.45, Stats. The current rules regulate the sale and installation of mobile air conditioner refrigerants, including “substitute refrigerants" such as R 134A. Among other things, the current rules prohibit the sale of mobile air conditioner refrigerants in containers holding less than 15 lbs. of refrigerant.
(2) On June 28, 2006, the Legislature's Joint Committee for Review of Administrative Rules (JCRAR) voted to suspend all current state rules related to the installation and sale of “substitute refrigerants" of any kind. This broad exemption will become effective on July 7, 2006 unless by that date DATCP adopts a narrower alternative exemption by emergency rule. The narrower exemption specified by JCRAR would apply only to the sale of the “substitute refrigerant" R 134A. The exemption would allow the sale of R 134A to the general public in “do-it-yourself" containers holding less than 15 lbs.
(3) DATCP is adopting this emergency rule for the sole purpose of preventing a broader JCRAR suspension of rules that currently prevent the release of mobile air conditioner refrigerant into the environment.
Publication Date:
July 12, 2006
Effective Date:
July 12, 2006
Expiration Date:
December 9, 2006
Hearing Date: August 15, 2006
Commerce
(Financial Resources for Businesses and Communities, Chs.
Comm 105 to
131)
Rule adopted creating
ch. Comm 131, relating to diesel truck idling reduction grants.
Exemption from Finding of Emergency
The legislature by Section 9108 (1w) in
2005 Wisconsin Act 25, provides an exemption from a finding of emergency for the adoption of this rule.
The rules specify who is eligible for receiving a grant in this program for purchasing and installing diesel truck idling reduction equipment. Eligible costs are also specified, along with how to apply for the grants. Parameters for awarding the grants are likewise specified. These parameters include (1) disallowing grants to any applicant who is failing to comply with any conditions imposed on any previous grant received in this program; and (2) alerting applicants that the Department may (a) refuse to award grants for idling reduction equipment on truck tractors that do not have a sleeper berth, (b) annually allocate up to 25 percent of the grant funding to applicants who
own and operate 50 or fewer truck tractors, and (c) set deadlines for submitting applications, and then prorate the awards to the applicants if the total funding requested in the applications exceeds the available revenue.
Publication Date:
June 30, 2006
Effective Date:
July 1, 2006
Expiration Date:
November 28, 2006
Hearing Date: July 25, 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
Elections Board (2)
1. 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:
December 3, 2006
Hearing Date: May 18, 2005
* On February 9, 2005, the Joint Committee for Review of Administrative Rules suspended this emergency rule.
** The legislative session ended on July 12, 2006, with no action on the bill that would have sustained the suspension action.
2. Rules were adopted creating s. ElBd 3.04, relating to election day registration and the requirement to provide a driver's license number or other form of identification to register at the polls.
Finding of Emergency
The Elections Board finds that an emergency exists in the 2002 change in federal law that requires persons who have been issued a current and valid driver's license to list that number in completing a voter registration application or their registration may not be processed.
In 2002, Congress enacted the Help America Vote Act to address problems and issues that surfaced in the 2000 presidential election. Section 303(a)(5)(A)(i) of the Act provided that “an application for voter registration for an election for Federal office may not be accepted or processed by a state unless the application includes – in the case of an applicant who has been issued a current and valid driver's license, the applicant's driver's license number." To comply with federal law, but also to avoid disenfranchising those Wisconsin election day registrants who have been issued a current and valid Wisconsin driver's license but do not provide that number on their registration form, the Board has adopted s. ElBd 3.04, providing for the issuance of a provisional ballot to those registrants, pursuant to s.
6.97, Stats. Under that statute, the provisional ballot will be counted if the registrant provides, by any means feasible, his or her driver's license number to the clerk of the municipality in which the registrant has voted, not later than 4:00 p.m., on the day following the election.
Previously, the Board's policy had been to process the election day registration of those registrants who failed to list their driver's license number on their registration application, if they had provided, on their registration form, a Wisconsin-issued Identification Card Number or the last four digits of their Social Security Number. Whether that policy complied with federal law had been in issue. Assuring that Wisconsin's practice complies with federal law and obtaining that assurance before election day, by the promulgation of this emergency rule, is found to be in the public interest.
Publication Date:
July 31, 2006
Effective Date:
July 31, 2006
Expiration Date:
December 28, 2006
Hearing Date: October 4, 2006
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
Hearing Date: August 14, 15, 16 & 17, 2006
Health and Family Services (2)
(Health, Chs.
HFS 110—)
1.
Rules were adopted revising
chs. HFS 110 and 111, relating to licensing emergency medical technicians and affecting small businesses.
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 the emergency are as follows:
In Wisconsin there are approximately 430 ambulance service providers. Approximately 80% are volunteer (not for profit) or owned by private for profit entities. The remaining 20% are government owned. A total of 129 ambulance service providers and 2,812 licensed individuals in 48 counties currently provide emergency medical services at the EMT-basic-IV (74) or EMT-provisional intermediate (55) level to approximately 2.65 million Wisconsin residents. The provider industry estimates that these ambulance service providers are losing approximately $1.5 million dollars in reimbursement revenues annually due to the codification of the EMT-basic IV services in ch.
HFS 110 as basic life support. The loss is likely to increase when the provisional EMT-intermediate is renamed EMT-basic IV effective July 1, 2006, and an estimated 95% of the individuals who are currently licensed and titled as provisional EMT-intermediate will be renamed EMT-basic IV. Ambulance service providers report that they cannot continue to cover the costs of training and operating at the advanced life support level of care while being reimbursed at the basic life support level of care. Consequently, the level of emergency medical services provided in over half of the state's 72 counties may be reduced or become non-existent unless changes are implemented.
To maintain the level of emergency medical services that are currently being provided and to avoid confusion about the skills and level of care provided by the EMT-basic IV licensee, the department in these emergency rules is changing the name of the EMT-basic IV license to EMT-intermediate technician and moving the licensing requirements to ch.
HFS 111. These changes will allow ambulance service providers to charge for both at the higher rate of reimbursement. In addition, these emergency rules will modify the continuing education requirements under ch.
HFS 110 to allow ambulance service providers flexibility in providing refresher training to EMT-basic licensees. This change will reduce financial and scheduling burdens on providers by allowing them to use their training dollars more cost effectively.
Publication Date:
July 1, 2006
Effective Date:
July 1, 2006
Expiration Date:
November 28, 2006
Hearing Dates:
July 25, 26 and 27, 2006
2.
Rules adopted creating
ch. HFS 137, relating to prescribing forms for use by physicians, technicians and tissue bank employees when removing organs and tissue, other than cardiovascular tissue from decedents.
Exemption from Finding of Emergency
The legislature by
2005 Wisconsin Act 230 requires these rules to be promulgated as emergency rules and exempts the Department from making a finding of emergency or providing evidence that these rules as emergency rules is necessary for the preservation of the public peace, health, safety, or welfare.
Plain language analysis:
The Department is required by
2005 Wisconsin Act 230 to appoint an advisory committee to assist the Department in prescribing, by rule, a form for removal of organs and a form for removal of tissue, other than cardiovascular tissue, for use by physicians, technicians, and tissue bank employees under section
157.06 (4m) (e) of the statutes, as created by Act 230. Section
157.06 (4m) (e), Stats., requires a physician who removes tissue or an organ from a decedent or a technician or tissue bank employee who removes tissue from a decedent under s.
157.06 (4m), Stats., to complete the form created by the Department and transmit the form to the coroner or medical examiner with jurisdiction over the decedent.
As required by section. 12. (1) (b) of Act 230, the Department intends to promulgate permanent rules that are substantially identical to the emergency rules.
Because these rules only prescribe forms, the Department will, as allowed under s.
227.23, Stats., promulgate these rules without adhering to the notice and public hearing requirements set forth under ch.
227, Stats. Also, as allowed under s.
227.23, Stats., the forms prescribed by the proposed rules will not be published in the Wisconsin administrative code or the Wisconsin Administrative Register, but will be listed by title and description with a statement as to how the forms may be obtained.
Publication Date:
July 24, 2006
Effective Date:
August 1, 2006
Expiration Date:
December 29, 2006
Insurance
Rules adopted creating
ss. Ins 9.25 (8) and 9.27 (4), Wis. Adm. Code, relating to preferred provider plan applicability dates and affecting small business plan limited exemption.
Finding of Emergency
The Commissioner of Insurance finds that an emergency exists and that the attached rule is necessary for the immediate preservation of the public peace, health, safety, or welfare. Facts constituting the emergency are as follows:
The rule identifies a limited group of policies issued by licensed insurers offering preferred provider plans that do not comply with newly promulgated ch.
Ins 9, Wis. Adm. Code. In compliance with the request of the Joint Committee for the Review of Administrative Rules (JCRAR), this rule must be issued as an emergency rule and permanent rule. It is not possible to complete the permanent rule process prior to the effective date of the chapter, January 1, 2007, therefore this emergency rule is necessary.
The commissioner has filed a notice of scope for drafting the permanent rule corresponding to this emergency rule and will continue with the permanent rule making process. It is intended that one rule hearing can be held to comply with both the emergency rule and permanent rule requirements.
Publication Date:
August 31, 2006
Effective Date:
September 1, 2006
Expiration Date:
January 29, 2007
Natural Resources (2)
(Fish, Game, etc., Chs.
NR 1—)
1.
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
Extension Through:
October 27, 2006
2.
Rules adopted revising
ch. NR 10, relating to the 2006 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, 2006
Effective Date:
August 31, 2006
Expiration Date:
January 28, 2007
Hearing Date: October 11, 2006
[See Notice this Register]
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:
October 4, 2006
Hearing Date: May 19, 2004
*On June 24, 2004, the Joint Committee for Review of Administrative Rules suspended this emergency rule.
** The legislative session ended on July 12, 2006, with no action on the bill that would have sustained the suspension action.
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
Natural Resources
(Environmental Protection - Hazardous Waste, Chs.
NR 600—)
Rules adopted revising
chs. NR 660 to 665, relating to hazardous waste management.
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:
In 2001, EPA proposed regulations to change the hazardous waste manifest requirements under the federal Resource Conservation and Recovery Act (RCRA) to eliminate all state-specific manifest requirements and to require electronic submittal of the manifests. The EPA's final rule was published March 4, 2005, with correcting amendments published on June 16, 2005, and the effective date is September 5, 2006. The new regulations require the use of standardized manifest forms in all states and require certification from EPA in order to print the manifest forms. (Final action on the e-manifest was postponed.) Unlike most RCRA rules, this federal regulation will take effect, nation-wide, on the effective date. The new federal requirements will apply in all states, including Wisconsin, but will not override or supersede Wisconsin's state-specific hazardous waste manifest requirements. Accordingly, the potential exists for conflicting or additional state manifest requirements to exist beginning on that date, and the advantages of a single, uniform nationwide rule will be lost.
The normal administrative rulemaking process cannot be completed in time to conform Wisconsin's hazardous waste manifest requirements to the new EPA manifest regulations by their September 5, 2006 effective date. However, failure to adopt the new federal requirements as state rules by this date may cause legal uncertainty and potential confusion among hazardous waste generators, transporters and treatment, storage and disposal facility operators, as well as state regulatory program staff. This could interfere with interstate commerce and the orderly functioning of government, imposing unnecessary regulatory costs on Wisconsin individuals and businesses and out-of-state companies doing business in Wisconsin, to the detriment of the public welfare. More importantly, the potential confusion caused by different state and federal manifest requirements could lead to improper transportation and management of hazardous wastes, resulting in a threat to public health or safety and the environment.
Publication Date:
September 2, 2006
Effective Date:
September 5, 2006
Expiration Date:
February 2, 2007
Hearing Date: September 26, 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
Extension Through:
November 10, 2006
Transportation (2)
1.
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
Hearing Date: August 8, 2006
2.
Rules adopted revising
ch. Trans 276, relating to allowing the operation of certain 2-vehicle combinations on certain highways without a permit.
Exemption from finding of emergency
The Legislature, by Section
7 of
2005 Wis. Act 363, provides an exemption from a finding of emergency for the adoption of the rule.
Plain language analysis
Section
348.07 (1), Stats., historically has limited vehicle lengths on Wisconsin highways to 65 feet. Section
348.07(2), Stats., allowed vehicles meeting the specifications of that subsection to operate without permits despite exceeding the 65-foot limit of subsection (1).
2005 Wis. Act 363 amended s.
348.07, Stats., and essentially made 75 feet the default permitted length on the state trunk highway system. Wisconsin's old default 65-foot overall length limit still applies on all local roads but only applies to state trunk highways that are designated as 65-foot restricted routes by the Department. This emergency rule making establishes a preliminary list of such “65-foot restricted routes."
Prior to Act 363, s.
348.07 (4), Stats., permitted the Department to designate “long truck routes" upon which no overall length limits apply. The Department designates the state's long truck routes in s.
Trans 276.07. This rule making does not affect those longstanding designations.
The new “default" 75-foot overall length limit applies on state highways that are neither designated as 65-foot restricted routes under this rule making nor long truck routes under s.
Trans 276.07.
Definitions have been added to the rule to make it easier to identify the nature of designations made by the Department in Ch.
Trans 276.
In drafting this rule the Department noticed several items that it believes may be of special interest to the legislature and which, in the Department's view, deserve special legislative attention. First, Act 363 did not grant any authority for 75-foot vehicles using the new 75-foot routes to leave those routes to reach fuel, food, maintenance, repair, rest, staging, terminal or vehicle assembly facilities or points of loading or unloading. The Department does not believe this oversight was intentional and, on an emergency basis, has designated the intersection of each 75-foot route and any other highway as a long truck route under its authority in s.
348.07 (4), Stats. This will permit trucks to exceed the 65-foot default length limit on local roads to access such facilities and make deliveries. The Department encourages the legislature to consider statutorily establishing access rights for vehicles using 75-foot restricted routes.
The second consequence of Act 363 the Department has discovered in drafting this emergency rule is that one statute that formerly restricted double-bottom tractor-trailer combinations to the state's long-truck network was repealed by the deletion of the reference to s. 348.07 (2) (gm), Stats., by the Act's amendment of s.
348.07 (4), Stats. Under the amended statute, as revised by Act 363, it might appear to a reader that double bottom trucks of unlimited length may operate upon any highway in the state, including local roads and streets, without permits. Section
348.08 (1) (e), Stats., however, continues to provide that double-bottom trucks be restricted to highways designated by the department under s.
348.07 (4). WisDOT believes this provision continues to limit double-bottom operation to long truck routes designated by the Department under s.
348.07 (4), Stats. WisDOT would suggest the deleted reference to (2) (gm) in 348.07 (4), Stats., be re-inserted into the statute to avoid confusion.
Finally, the Department notes that s.
348.07, Stats., is becoming difficult to decipher from a legal standpoint because of the many amendments that have been made to it over the years. It may be that recodifying the statute for the purpose of clarification of the length limitations of Wisconsin law would be helpful to truck and long vehicle operators in this state.
Publication Date:
September 15, 2006
Effective Date:
September 15, 2006
Expiration Date:
February 12, 2007
Hearing Date: October 4, 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:
October 12, 2006
* On April 28, 2004, the Joint Committee for Review of Administrative Rules suspended s.
DWD 274.035 created as an emergency rule.
** The legislative session ended on July 12, 2006, with no action on the bill that would have sustained the suspension action.
