Patrick Casey, Wisconsin State AFL-CIO
Hallet Jenkins, City of Milwaukee
Dave Jones, Plumbing Contractor
Gary Kowalke, PHCC/MPA Wisconsin
Jeff Kuhn, Plumbing, Mechanical and Sheet Metal Contractors Alliance
Rudolf Petrowitsch, American Society of Sanitary Engineering
Gene Shumann, Plumbing Designer
David Viola, Plumbing Manufacturers Institute
Joseph Zoulek, PHCC/MPA Wisconsin
Environmental Analysis
NOTICE IS HEREBY GIVEN that the Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.
Initial Regulatory Flexibility Analysis
Types of small businesses that will be affected by the rules
Section
145.12 (5), Stats., as affected by
2005 Wisconsin Act 182, allows the department to directly asses forfeitures to individuals who violate the plumbing licensing provisions of s.
145.06, Stats. Section
182.0715 (2r), Stats., requires the installation of tracer wire or some equally-effective means of locating non-metallic underground sewer and water piping laterals. The proposed rules are intended to implement these two statutory changes which may to a degree affect plumbing contracting businesses.
Reporting, bookkeeping and other procedures required for compliance with the rules
There are no reporting or bookkeeping procedures required for compliance with the rules.
Types of professional skills necessary for compliance with the rules
There are no new types of professional skills necessary for compliance with the rules.
Do rules have a significant economic impact on small businesses? No.
Small business regulatory coordinator
Fiscal Estimate
The proposed rules serve two purposes. One part of the rules implements Wisconsin Act 182 which allows the Department to directly assess forfeitures to individuals who violate the licensing provisions of s.
145.06, Stats. The rules establish the process for assessing and appealing the forfeitures. The other part of the rules clarifies s.
182.0715 (2r), Stats., which requires the installation of tracer wire or some equally-effective means of locating non-metallic underground sewer and water laterals. The rules establish specific methods for complying with this legislative mandate. The department does not anticipate that the rules will substantially increase its workload and the workload can be accommodated with current resources.
The cost for installers to provide a method for locating non-metallic sewer and water laterals is dependent upon various variables. Depending upon the method chosen and the length of the installation, the department estimates that installation costs can be as little as $10 per installation utilizing GIS technology, or $1.00 per foot utilizing tracer wire.
No long range fiscal implications are anticipated.
Copies of Rule
The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at
www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at
roberta.ward@wisconsin.gov, or at telephone (608) 266-8741 or (608) 264-8777 (TTY). Copies will also be available at the public hearing.
Notice of Hearing
Employee Trust Funds
A public hearing on a proposed rule to create s.
ETF 20.37, regarding the status of a non-annuitant Wisconsin Retirement System participant at death, for purposes of determining the applicable death benefit, will be held on
August 14, 2007 at 10:30 AM in Conference Room GA at the offices of the Department of Employee Trust Funds, 801 West Badger Road, Madison, Wisconsin. Persons wishing to attend should come to the reception desk up the stairs (or elevator) from the main entrance.
Analysis Prepared by the Department of Employee Trust Funds
Statute interpreted
Statutory authority
Explanation of agency authority
By statute, the DETF Secretary is expressly authorized, with appropriate Board approval, to promulgate rules required for the efficient administration of any benefit plan established in ch.
40 of the Wisconsin Statutes. Also, each state agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute.
Related statute or rule
Section
40.02 (46), Stats., which defines a participating employee, including the criteria that the person be “
… an employee who is currently in the service of, or an employee who is on a leave of absence from, a participating employer
… ."
Section
40.02 (26), Stats., which defines “employee" and provides in part that, “
… an employee is deemed to have separated from the service of an employer at the end of the day on which the employee last performed services for the employer, or, if later, the day on which the employee-employer relationship is terminated because of the expiration or termination of leave without pay, sick leave, vacation or other leave of absence.
… ."
Section
ETF 10.08 (3) (a), Wis. Adm. Code, governs the date of termination for purposes of purposes of establishing eligibility to receive benefits from the Wisconsin retirement system, including separation benefits, lump sum benefits and retirement annuity benefits. That rule expressly provides that the date of termination is the
earliest of several listed alternatives, among which are the expiration of an unpaid leave of absence (when the termination is based on failing to return to work after such a leave), the date the employer discharged the employee, the date the employee's resignation is effective, and the date of the employee's death.
Plain language analysis
The purpose of this rule is to codify an interpretation of s.
40.71 (1) (b), Stats., and eliminate a potential misunderstanding. The clarified interpretation will better effectuate the purpose of the statute and also reflect the Department's general policies of treating participants in the Wisconsin Retirement System impartially and of administering benefits in accord with the statutory eligibility criteria.
This rule applies to death benefits payable because of the death of a person who was not an annuitant of the Wisconsin Retirement System. The rule will codify that a person's actual status on the date of the person's death determines whether the death benefits payable from the Wisconsin Retirement System are those for an active employee or a former employee. If the person's employment was terminated prior to the date of death, then the benefits payable will be those appropriate for a former employee. The date the employer's report is received by the Department will not dictate the benefits due.
Section
40.71 (1) (b), Stats., is one of several statutes that determines whether a deceased participant is treated as an active employee, a former employee or an annuitant for purposes of paying the applicable death benefits from the Wisconsin Retirement System. This particular provision states:
If the date of death is less than one year after the last day for which earnings were paid, a participant is deemed a participating employee on leave of absence, notwithstanding the fact that no formal leave of absence is in effect, if the participating employer for which the participant last performed services as a participating employee has not filed notice of the termination of employment prior to the employee's death.
The purpose of the statute is clearly to treat a decedent whose employment had not been formally terminated as a person on leave of absence, for up to a year. Participating employees granted a leave of absence continue to be participating employees, as expressly provided by s.
40.02 (46), Stats.
It has come to the Department's attention that a misreading of the last clause of the statute is possible. The last clause might be misread to imply that if an employer terminated an employee, but did not report the termination to the Department until after the employee died, then the death benefits would be determined as if the decedent was “deemed" to be an active employee at the time of death. A clear interpretation of the last clause of s.
40.71 (1) (b), Stats., is necessary in order for the Department to calculate and pay the correct death benefits.
The interpretation to be promulgated by this rule will do nothing to change the one-year presumption in s.
40.71 (1) (b), Stats., that a deceased employee who was not terminated prior to death was an employee at death, even if no formal leave of absence had been granted.
Federal regulations
There are no known existing or proposed federal regulations that are intended to address the activities regulated by this rule.
Surrounding states regulations
Although there are a number of governmental retirement plans in Illinois, Iowa, Minnesota and Michigan, their administrative rules are not directly relevant to interpreting the Wisconsin statutes governing the Wisconsin Retirement System. Governmental plans differ in the degree to which the terms of the plan are established by enabling legislation or left to subsequent administrative rulemaking or other means.
Illinois. There appear to be no Illinois administrative rules relating to the belated reporting of the severance or termination of employment of a person who subsequently dies, and the computation of death benefits from a public employee pension system.
A rule adopted by the State Employees Retirement System, Ill. Admin. Code title 80 § 1540.255 e), does not deal with the computation of a death benefit, but does provide that if the member has elected to use payroll deductions for the purchase of permissive service credits or reinstating past service credits, the deductions end upon the earliest of several alternative events, including the employee's death or termination of employment.
For purposes of making distributions, the rules governing the State of Illinois Employees Deferred Compensation Plan treat the employee's severance from employment or death as two distinctly different events. Death is not included in the definition of severance from employment. See Ill. Admin. Code title 80 §§ 2700.200 and 2700.700 b) 1) and 2).
Iowa. There appear to be no Iowa administrative rules relating to the belated reporting of the severance or termination of employment of a person who subsequently dies, and the computation of death benefits from a public employee pension system.
Michigan. There appear to be no Michigan administrative rules relating to the belated reporting of the severance or termination of employment of a person who subsequently dies, and the computation of death benefits from a public employee pension system.
Minnesota. There appear to be no Minnesota administrative rules relating to the belated reporting of the severance or termination of employment of a person who subsequently dies, and the computation of death benefits from a public employee pension system.
Factual data and analytical methodologies
The Department considered, and rejected, the alternative interpretation of the statute that would permit an employer to delay reporting a termination and thereby possibly increase the benefits payable if the former employee should die. The Department has a duty to administer benefits in accord with the laws governing the Wisconsin Retirement System. These laws include requirements for employers to make accurate, regular and timely reports to the Department concerning covered employees. The alternative interpretation would conflict with those duties by appearing to permit a delay in reporting terminations of employment. Any effort to administer such an interpretation would also likely give rise to differing treatment of similarly situated former employees. The Department has a duty to treat participants impartially within the laws governing the retirement system.
Analysis and supporting documents used to determine effect on small business
The rule can have no effect on small businesses because private employers and their employees do not participate in, and cannot be covered by, the Wisconsin Retirement System. The Wisconsin Retirement System is required to be maintained and administered as a qualified governmental plan, covering only governmental employees.
Anticipated costs incurred by private sector
None.
Effect on small business
No effect.
Agency Contact Person
Please direct any questions about the proposed rule to Robert Weber, Chief Counsel, Office of Legal Services, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Telephone: (608) 266-5804. E-mail address:
rob.weber@etf.state.wi.us.
Submission of Comments
Written comments on the proposed rule may be submitted to Robert Weber, Department of Employee Trust Funds, 801 W. Badger Road, P.O. Box 7931, Madison, WI 53707-7931. Written comments must be received at the Department of Employee Trust Funds no later than 4:30 PM on Wednesday, August 15, 2007.
Initial Regulatory Flexibility Analysis
The proposed rule has no effect on small businesses.
Fiscal Estimate
The rule will have no effect on county, city, village, town, school district, technical college district or sewerage district fiscal liabilities or revenues. The rule will have no effect on state funds.
Copies of Rule
Copies of the proposed rule are available without cost from the Office of the Secretary, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707-7931, telephone (608) 266-1071.
Notice of Hearing
Insurance
NOTICE IS HEREBY GIVEN that pursuant to the authority granted under s.
601.41 (3), Stats., and the procedures set forth in under s.
227.18, Stats., the Office of the Commissioner of Insurance will hold a public hearing to consider the adoption of a proposed rule affecting s.
Ins 2.81, Wis. Adm. Code, relating to use of the 2001 CSO Preferred Class Structure Mortality Table in determining reserve liabilities.
Hearing Information
Date: August 22, 2007
Time: 10:00 a.m., or as soon thereafter as the matter
may be reached
Place: OCI, Room 227
125 South Webster St, 2nd Floor
Madison, WI
Submission of Comments
Written comments can be mailed to:
James W. Harris
