Scope Statements
Agriculture, Trade and Consumer Protection
In accordance with
2011 Wisconsin Act 21 (s.
227.135 (2), Stats.), this scope statement was approved by the governor on August 29, 2011, before DATCP took any action in proceeding with this proposed rule, including submission of this scope statement for publication.
The Department of Agriculture, Trade and Consumer Protection (DATCP) gives notice, pursuant to section
227.135, Stats., that it proposes to adopt an emergency administrative rule as follows:
Subject
Emerald Ash Borer Emergency Rule.
Administrative Code Reference
Statutory Authority
Preliminary Objectives
This rule will do the following:
•
Create county-level quarantines for emerald ash borer for counties where the beetle is detected. The quarantine will prohibit the movement of all hardwood species of firewood, nursery stock, green lumber, and other material living, dead, cut or fallen, including logs, stumps, roots, branches and composted and uncomposted chips of the genus Fraxinus (Ash wood), out of the county or out of adjoining contiguous quarantined counties.
•
Provide an exemption for items that have been inspected and certified by a pest control official and are accompanied by a written certificate issued by the pest control official (some products, such as nursery stock, cannot be given an exemption).
•
Provide an exemption for businesses that enter into a state or federal compliance agreement. The compliance agreement spells out what a company can and cannot do with regulated articles.
Preliminary Policy Analysis
DATCP has authority under s.
93.07 (12), Stats., to conduct surveys and inspections for the detection and control of pests injurious to plants, and to make, modify, and enforce reasonable rules needed to prevent the dissemination of pests. DATCP also has plant inspection and pest control authority under s.
94.01, Stats. DATCP may by rule impose restrictions on the importation or movement of serious plant pests, or items that may spread serious plant pests.
EAB is a very serious plant pest risk that has destroyed large numbers of ash trees in neighboring Midwestern states. EAB is an exotic pest that endangers Wisconsin's 770 million ash trees and ash tree resources. This insect has the potential to destroy entire stands of ash, including up to 20% of Wisconsin's urban street trees and residential landscaping trees, and can result in substantial losses to forest ecosystems. The insect can cause great harm to state lands, and to the state's tourism and timber industries. Currently, EAB has been identified in 15 states, including Wisconsin, and two Canadian provinces. Eleven Wisconsin counties have been quarantined to restrict the movement of ash wood in order to prevent the spread of EAB.
This emergency rule is necessary to create an immediate quarantine of the counties with new EAB detections until the federal quarantine is enacted. The federal quarantine will take effect up to six months after a formal submission by the state plant regulatory official.
Current and Proposed Federal Legislation and Comparison to Proposed Rule
In order to limit the spread of EAB, the Animal and Plant Health Inspection Service of the United States Department of Agriculture (USDA-APHIS) has imposed quarantines on the movement of ash wood from Illinois, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Missouri, New York, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin, as well as the Canadian provinces of Ontario and Quebec. DATCP rules currently prohibit imports of hardwood firewood and any wood of the genus Fraxinus from any federally quarantined area, except under authorized conditions. This proposed rule is consistent with current state and federal rules.
Entities Affected
This emergency rule may have an impact on persons or companies that deal in any hardwood firewood or ash materials in the quarantined counties. This emergency rule restricts the sale or distribution of ash products plus any hardwood firewood from the quarantined counties to locations outside of the quarantined counties.
The business impact of this emergency rule depends on the number of nurseries that sell/distribute ash nursery stock outside the quarantined counties, firewood producers/dealers that sell/distribute outside the quarantined counties, saw mills that move untreated ash stock outside the quarantined counties, and green wood waste that is moved outside the quarantined counties.
Licensed nursery growers will not be able to sell ash nursery stock outside of the quarantined counties. Firewood dealers would need to be certified under s.
ATCP 21.20 to sell firewood outside of the quarantined counties. To obtain certification a firewood dealer will have to pay an annual certification fee to DATCP of $50 and treat the firewood in a manner that insures it is free of emerald ash borer. In order to sell ash wood products outside of their counties, veneer mills and wood processing mills that deal with ash will have to enter into a compliance agreement with DATCP or APHIS that authorizes movement of ash products outside of their counties only when there is assurance that the movement will not spread the emerald ash borer to other locations.
Policy Alternatives
If DATCP does nothing, potentially infested wood will be allowed to move freely and the department will not be able to regulate its movement. The department would have no regulatory authority in the counties with new EAB finds, raising the potential of a more rapid spread of EAB.
Statutory Alternatives
None at this time.
Staff Time Required
DATCP estimates that it will use approximately 0.1 FTE staff time to develop these rules. This includes time required for investigation and analysis, rule drafting, preparing related documents, holding public hearings, and communicating with affected persons and groups. DATCP will use existing staff to develop this rule.
Datcp Board Authorization
DATCP may not begin drafting this rule until the Board of Agriculture, Trade and Consumer Protection approves this scope statement. The Board may not approve this scope statement sooner than 10 days after this scope statement is published in the Wisconsin Administrative Register. Before the department may publish the emergency rule, it must receive written approval of the proposed emergency rule from the Governor.
Corrections
The statement of scope for this rule, SS 410-DOC 302-11 Act 38 Modifications of Sentences, was approved by the governor on August 4, 2011.
Subject
Revises Chapter
DOC 302, relating to the repeal under
2011 Wis. Act 38 of statutory provisions relating to modification of sentences under s.
973.01, Stats.
Description of the Objective of the Rule
The objective of the rule is to bring chapter DOC 302 into compliance with
2011 Wis. Act 38. The legislature repealed the provisions of
2009 Wis. Act 28, relating to modification of bifurcated sentences under s.
973.01, Wis. Stats. The department seeks to repeal and amend the provisions of chapter DOC 302 which were promulgated in response to
2009 Wis. Act 28.
Description of Existing Policies and New Policies Included in the Proposed Rule and An Analysis of Policy Alternatives
In response to
2009 Wis. Act 28, the department promulgated rules to address mechanisms for modification of bifurcated sentences under s. 973.01, Stats. The legislature recently repealed the provisions of Act 28. (See
2011 Wis. Act 38.) The department seeks to repeal and amend the provisions of chapter DOC 302, relating to modification of bifurcated sentences to come into compliance with
2011 Wis. Act 38.
Failure to engage in the rule making process will result in the department's rules not being in compliance with
2011 Wis. Act 38.
Statutory Authority
Estimate of the Amount of Time State Employees Will Spend Developing the Proposed Rule and of Other Resources Necessary to Develop the Rule
The Department estimates that it will take approximately 50 hours to develop this rule, including drafting the rule and complying with rulemaking requirements.
Description of All of the Entities That Will be Affected by the Rule
The rule affects persons who are convicted of criminal offenses and receive a sentence under s.
973.01, Stats., and DOC staff.
Summary of and Preliminary Comparison with Any Existing or Proposed Federal Regulation that Is Intended to Address the Activities to be Regulated by the Proposed Rule
There are no federal regulations which address the issue of modification of sentences under s.
973.01, Wis. Stats.
Contact Person
Kathryn R. Anderson, Chief Legal Counsel, Wisconsin Department of Corrections, 3099 East Washington Avenue, P.O. Box 7925, Madison, WI 53707-7925, (608) 240-5049,
kathryn.anderson@wisconsin.gov.
Employment Relations Commission
This statement of scope regarding both an emergency rule and a proposed permanent rule was approved by the governor on August 31, 2011.
Subject
The Wisconsin Employment Relations Commission plans to promulgate emergency and permanent administrative rules regarding: (1) the calculation of the maximum allowable collectively bargained change in total base wages authorized by
2011 Wisconsin Act 10 and
2011 Wisconsin Act 32 and; (2) how the Commission will coordinate with the Wisconsin Department of Revenue when providing the consumer price index to the State of Wisconsin, municipal employers, and collective bargaining representatives as mandated by said Section 315 of Act 10 and Section 2409br of Act 32.
Statutory Authority
Estimate of Time Needed to Develop the Rule
It is estimated that 50 hours of state employee time will be spent to develop the rules.
Policy Analysis
The rules will affect all municipal employers, the State of Wisconsin, all municipal and state employees who are eligible to be represented by a labor organization for the purposes of collective bargaining, and all labor organizations who do or wish to represent employees of a municipal employer or of the State of Wisconsin for the purposes of collective bargaining.
Comparison with Federal Regulations.
There are no existing or proposed federal regulations that address the activities to be regulated by the rules.
Contact Person
Scope Statement prepared July 15, 2011 by Peter G. Davis, Chief Legal Counsel, Wisconsin Employment Relations Commission. (608) 266-2993;
peterg.davis@wisconsin.gov.
Government Accountability Board
This statement of scope was approved by the governor in writing on August 24, 2011.
Subject
Revises section
GAB 1.28 (3) (b), relating to the definition of the term “political purpose."
Objective of the Rule
The present amendment involves only the repeal of the second sentence of s.
GAB 1.28 (3) (b). All other portions of s.
GAB 1.28 effected on August 1, 2010, including the first sentence of s.
GAB 1.28 (3) (b), are unchanged.
The first sentence of s.
GAB 1.28 (3) (b), provides that any communication that “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate" is a communication “for political purposes" within the meaning of s.
11.01 (16), Stats., and hence is subject to all of the campaign finance regulations under ch.
11 of the Wisconsin Statutes that apply to communications for a political purpose — subject, of course, to any additional requirements or limitations contained in particular statutes.
The second sentence of s.
GAB 1.28 (3) (b) additionally identifies communications which are susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. That is, any communications that possess the characteristics enumerated in the second sentence of s.
GAB 1.28 (3) (b) would automatically be deemed communications for a political purpose and, as a result, would automatically be subject to the applicable campaign finance regulations under ch.
11 of the Wisconsin Statutes.
As a result of litigation challenging the validity of the August 1, 2010, amendments to s.
GAB 1.28, the Board has entered into a stipulation to refrain from enforcing the second sentence of s.
GAB 1.28 (3) (b). The Board, through its litigation counsel, has also represented that it does not intend to defend the validity of that sentence and has sought judicial orders permanently enjoining its application or enforcement. This sentence is removed by this rule.
Policy Analysis
The revised rule will subject to regulation communications that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The revised rule will subject communications meeting this criterion to the applicable campaign finance regulations and requirements of ch.
11, Stats. The scope of regulation will be subject to the United States Supreme Court Decision,
Citizens United vs. FEC (No. 08-205), permitting the use of corporate and union general treasury funds for independent expenditures.
Statutory Authority
Comparison with Federal Regulations
The United States Supreme Court upheld regulation of political communications called “electioneering communications" in its December 10, 2003 decision: McConnell et al. v. Federal Election Commission, et al. (No.02-1674), its June 25, 2007 decision of: Federal Election Commission (FEC) v. Wisconsin Right to Life, Inc. (WRTL II), (No.06-969and 970), and pursuant to its January 21, 2010 decision of: Citizens United vs. FEC (No. 08-205).
The McConnell decision is a review of relatively recent federal legislation – The Bipartisan Campaign Reform Act of 2002 (BCRA) – amending, principally, the Federal Election Campaign Act of 1971 (as amended). A substantial portion of the McConnell Court's decision upholds provisions of BCRA that establish a new form of regulated political communication – “electioneering communications" – and that subject that form of communication to disclosure requirements as well as to other limitations, such as the prohibition of corporate and labor contributions for electioneering communications in BCRA ss. 201, 203. BCRA generally defines an “electioneering communication" as a broadcast, cable, or satellite advertisement that “refers" to a clearly identified federal candidate, is made within 60 days of a general election or 30 days of a primary election and, if for House or Senate elections, is targeted to the relevant electorate.
In addition, the Federal Election Commission (FEC) promulgated regulations further implementing BCRA (generally
11 CFR Parts 100-
114) and made revisions incorporating the
WRTL II decision by the United States Supreme Court (generally
11 CFR Parts 104,
114). The FEC regulates “electioneering communications."
Entities Affected by the Rules
Any person, committee, individual or political group that will sponsor communications “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."
Estimate of Time Needed to Develop the Rules
20 hours.
Justice
This statement of scope was approved by the governor on August 31, 2011.
Rule No.:
These proposed emergency rules will be placed in a new chapter, to be designated Wis. Admin. Code Chapter
Jus 17. Rule numbers have not yet been designated.
Relating to:
Licenses authorizing persons to carry concealed weapons; concealed carry certification cards for qualified former federal law enforcement officers; and the certification of firearm safety and training instructors.
Description of the Objectives of the Rules
The State of Wisconsin Department of Justice (“DOJ") proposes to promulgate emergency administrative rules relating to the implementation of DOJ's statutory responsibilities under
2011 Wis. Act 35 regarding licenses authorizing persons to carry concealed weapons, concealed carry certification cards for qualified former federal law enforcement officers, and the certification of firearm safety and training instructors. The proposed emergency rules will cover four subject areas:
First, there will be rules governing the issuance of concealed carry licenses to qualified applicants by DOJ pursuant to s.
175.60, Stats. These rules will govern all aspects of the licensing process and will describe the procedures and standards under which DOJ will process applications, set and collect fees, and verify that each license applicant meets all of the license eligibility requirements under s.
175.60 (3), Stats., including procedures and standards for certifying that an applicant has satisfied the applicable statutory training requirements and procedures for conducting the statutorily required background check of each applicant to determine whether the applicant is prohibited from possessing a firearm under state or federal law. The background check rules will include procedures for conducting fingerprint checks to verify the identity of any applicant who is initially found to be ineligible based on the background check.
Second, the rules will govern the administration of concealed carry licenses that have been issued by DOJ. These rules will cover: the maintenance and treatment of licensing records by DOJ; the receipt and processing by DOJ of information from courts regarding individuals subject to a court-imposed disqualification from possessing a dangerous weapon; procedures for renewing a license and replacing a license that is lost, stolen, or destroyed; procedures for processing address changes or name changes by licensees; procedures and standards for revoking or suspending a license; procedures for the administrative review by DOJ of any denial, suspension, or revocation of a license; and procedures governing DOJ's cooperation with courts and law enforcement agencies in relation to emergency licenses issued by a court.
Third, the rules will govern the procedures and standards under which DOJ will issue concealed carry certification cards to qualified former federal law enforcement officers pursuant to s.
175.49, Stats. These rules will govern all aspects of the certification process for former federal officers who reside in Wisconsin and will describe the procedures and standards under which DOJ will process applications, set and collect fees, and verify that each applicant meets all of the certification eligibility requirements under s.
175.49 (3) (b), Stats., including procedures and standards for certifying that an applicant has satisfied the firearm qualification requirement under s.
175.49 (3) (b) 5., Stats., and procedures for conducting the statutorily required background check of each applicant to determine whether the applicant is prohibited from possessing a firearm under federal law. The background check procedures will include procedures for checking fingerprints to verify the identity of any certification applicant who is initially found to be ineligible based on the background check. The rules will also cover: the maintenance and treatment of certification records by DOJ; procedures for renewing a certification card and replacing a card that is lost, stolen, or destroyed; procedures for processing address changes or name changes by a certified former federal officer; procedures and standards for revoking or suspending a certification; and procedures for the administrative review by DOJ of any denial, suspension, or revocation of a certification.
Fourth, the rules will govern the procedures and standards for the qualification and certification of firearms instructors by DOJ under s.
175.60 (4) (b), Stats., and will provide a definition identifying those firearm instructors who are certified by a national or state organization, as provided in s.
175.60 (4) (a), Stats.
DOJ's existing administrative rules are located at Wis. Admin. Code chs.
Jus 8-
12,
14, and
16. The emergency rules proposed here will be placed in a new chapter, to be designated Wis. Admin. Code Chapter
Jus 17, and to be titled “Licenses to carry a concealed weapon." In addition to the rules proposed here, the new chapter will also contain another emergency rule — being separately promulgated by DOJ — that lists those states that issue a permit, license, approval, or other authorization to carry a concealed weapon that is entitled to recognition in Wisconsin under s.
175.60 (1) (f), Stats.
Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and An Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
In
2011 Wisconsin Act 35, the state of Wisconsin established a new system under which DOJ is required to issue licenses authorizing eligible Wisconsin residents to carry concealed weapons in Wisconsin and to certify firearms safety and training instructors. The legislation also authorizes DOJ to issue concealed carry certification cards to qualified former federal law enforcement officers who reside in Wisconsin. Because the concealed carry licensing and certification programs established by Act 35 are entirely new, there are no existing DOJ practices or policies that cover the subject areas of the administrative rules here proposed.
Most of the proposed rules will simply carry into effect the legislative directives set forth in Act 35. In a few areas, the proposed rules will articulate policies which give substance to undefined statutory terms or are needed to ensure that licenses and certification cards are issued only to eligible individuals and that all applicants and licensees are properly identified at all times. Such rules are specifically intended to carry out the legislature's intent reflected in Act 35.
For example, the proposed rules will provide definitions of such undefined statutory terms as “firearms safety or training course" and “national or state organization that certifies firearms instructors." Such definitions are necessary to give substantive content to these otherwise undefined statutory terms so as to carry out the legislative purposes of ensuring that all licensees have been trained in firearms and firearms safety and of ensuring that all certified firearms instructors have demonstrated the ability and knowledge required for providing training in firearms and firearms safety. The policy alternative of not defining such terms in DOJ's administrative rules would be contrary to those important legislative purposes.
Similarly, the proposed rules will specify the types of information that must be included in a training certificate or affidavit in order for DOJ to find that certificate or affidavit to be sufficient to satisfy the training documentation requirements in s.
175.60 (4) (a), Stats. Such specification is necessary to give substantive content to the statutory documentation requirements so as to carry out the legislative purpose of ensuring that every successful applicant for a concealed carry license has adequately demonstrated completion of at least one of the forms of statutorily required training. The policy alternative of not specifying the required contents of an acceptable training certificate or affidavit in DOJ's administrative rules would be contrary to that important legislative purpose.
The proposed rules will also contain procedures for conducting fingerprint checks to verify the identity of any license or certification applicant who is initially found to be ineligible based on a background check, procedures for issuing a new concealed carry license or certification card to an individual who changes his or her name, and procedures under which DOJ will work cooperatively with courts and law enforcement agencies in relation to any emergency concealed carry license that may be issued by a court, pursuant to s.
175.60 (9r). These procedures are not specifically required by statute but are necessary to carry out the legislative purposes of ensuring that licenses and certification cards are issued only to eligible individuals and that all applicants and licensees are properly identified at all times. The policy alternative of not including such procedures in DOJ's administrative rules would be contrary to those important legislative purposes.
Statutory Authority for the Rule (Including the Statutory Citation and Language)
Those portions of the proposed rules that will establish the amount of the fee to be charged for a concealed carry license are expressly and specifically authorized and required by s.
175.60 (7), Stats., which provides:
SUBMISSION OF APPLICATION. An individual may apply for a license under this section with the department by submitting, by mail or other means made available by the department, to the department all of the following:
(c) A license fee in an amount, as determined by the department by rule, that is equal to the cost of issuing the license but does not exceed $37. The department shall determine the costs of issuing a license by using a 5-year planning period.
Those portions of the proposed rules that will establish procedures for the administrative review by DOJ of any denial, suspension, or revocation of a license are expressly and specifically authorized by s.
175.60 (14g), Stats., which provides:
DEPARTMENTAL REVIEW. The department shall promulgate rules providing for the review of any action by the department denying an application for, or suspending or revoking, a license under this section.
Those portions of the proposed rules that will establish the amount of the fee to be charged for the renewal of a concealed carry license are expressly and specifically authorized by s.
175.60 (15) (b), Stats., which provides:
The department shall renew the license if, no later than 90 days after the expiration date of the license, the licensee does all of the following:
4. Pays all of the following:
a. A renewal fee in an amount, as determined by the department by rule, that is equal to the cost of renewing the license but does not exceed $12. The department shall determine the costs of renewing a license by using a 5-year planning period.
Those portions of the proposed rules that are not specifically authorized by ss.
175.60 (7),
(14g), and
(15) (b), Stats., as described above, are authorized by s.
227.11 (2) (a), Stats., which provides:
(2) Rule-making authority is expressly conferred as follows:
(a) Each 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, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
This statute expressly confers on DOJ the general power to determine whether administrative rules interpreting those statutory provisions in Act 35 that are to be enforced or administered by DOJ are necessary to effectuate the purpose of those statutory provisions and, if such necessity is found, to promulgate such administrative rules, as long as those rules do not exceed the bounds of correct interpretation of the governing statutes.
DOJ finds that the rules here proposed are necessary to effectuate those portions of ss.
175.49 and
175.60 that require DOJ to establish and operate procedures governing:
•
the issuance of concealed carry licenses to qualified applicants, including verification that each applicant has satisfied the applicable statutory training requirements, has passed the mandatory background check, and has met all of the other statutory eligibility requirements for a license;
•
the issuance of concealed carry certification cards to qualified former federal law enforcement officers residing in Wisconsin, including verification that each applicant has satisfied the applicable firearm certification requirements, has passed the mandatory background check, and has met all of the other statutory eligibility requirements for certification;
•
the administration of concealed carry licenses and certifications that have been issued by DOJ, including the maintenance and treatment of records; the receipt and processing of information from courts about individuals subject to a court-imposed disqualification from possessing a dangerous weapon; the renewal of licenses and certifications and the replacement of those that are lost, stolen, or destroyed; the processing of address changes or name changes for licenses and certifications; procedures and standards for revoking or suspending a license or certification; procedures for the administrative review by DOJ of any denial, suspension, or revocation of a license or certification; and procedures governing DOJ's cooperation with courts and law enforcement agencies in relation to emergency licenses issued by a court; and
•
the qualification and certification of firearms instructors by DOJ and the identification of those firearm instructors who are certified by a national or state organization.
DOJ further finds that the rules here proposed:
•
do not exceed the bounds of correct interpretation of ss.
175.49 or
175.60;
•
are authorized by the statutes described above and are not based on authority derived from any other statutory or nonstatutory statements or declarations of legislative intent, purpose, findings, or policy;
•
are authorized as necessary interpretations of the specific requirements of ss.
175.49 and
175.60 and are not based on authority derived from any other general powers or duties of DOJ; and
•
do not impose any standards or requirements that are more restrictive than the standards and requirements contained in ss.
175.49 and
175.60.
The proposed rules may be promulgated as emergency rules under s.
227.24 (1) (a), Stats., which provides:
An agency may promulgate a rule as an emergency rule without complying with the notice, hearing and publication requirements under this chapter if preservation of the public peace, health, safety or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures.
DOJ finds that the public welfare necessitates promulgating the proposed rules as emergency rules under s.
227.24 (1) (a), Stats.
Under section 101 of Act 35, most of the provisions of the Act — including the provisions governing the licensing and certification processes covered by the proposed rules and the provisions authorizing the carrying of a concealed weapon by the holder of a license, an out-of-state license, or a certification card — will have an effective date of November 1, 2011. In particular, s.
175.60 (9) will require DOJ to begin receiving and processing license applications and issuing or denying licenses as soon as that provision takes effect on November 1, 2011. The Legislature has thus determined that the public welfare requires the licensing system to take effect on November 1, 2011.
DOJ cannot comply with the requirements of s.
175.60 (9), Stats., and related statutory requirements until it has in effect administrative rules establishing the procedures and standards that will govern DOJ's enforcement and administration of those requirements. It follows that, in order for DOJ to meet its statutory duties that take effect on November 1, 2011, it must complete the promulgation of the administrative rules proposed here prior to that date.
Under the non-emergency rule-making procedures of ch.
227, Stats., before the proposed rules could be promulgated, numerous notice, hearing, and publication requirements would have to be fulfilled — including, but not limited to a public hearing on the proposed rules, preparation of a detailed report including a summary of public comments and DOJ's responses to those comments, and legislative review of the proposed rules. DOJ has determined that it is impossible for all of the required steps in that non-emergency rule-making process to be completed by November 1, 2011. Only if DOJ utilizes the emergency rulemaking procedures of s.
227.24, Stats., can the requisite rules be promulgated and in effect in time for DOJ to meet its statutory duties that take effect on November 1, 2011. The public welfare thus necessitates that the proposed rules be promulgated as emergency rules under s.
227.24, Stats. Once the proposed emergency rules have been promulgated, DOJ will promptly follow up with the promulgation of a permanent version of the rules under the full rulemaking procedures.
Estimate of the Amount of Time that State Employees will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
It is estimated that state employees will spend approximately 200 hours on the rulemaking process for the proposed rules, including research, drafting, and compliance with required rulemaking procedures.
Description of all Entities that may be Impacted by the Rule
The proposed rules governing procedures and standards for the issuance and administration of concealed carry licenses under s.
175.60, Stats., will directly affect the interests of all Wisconsin residents who wish to apply for a license to carry a concealed weapon. In addition, the proposed rules will also indirectly affect the interest of the general public to the extent that the proper training and licensing of concealed carry licensees generally affects public safety.
The proposed rules governing procedures and standards for the issuance and administration of certification cards under s.
175.49 (3), Stats., will directly affect the interests of all former federal law enforcement officers residing in Wisconsin who wish to apply for such certification. In addition, the proposed rules will also indirectly affect the interest of the general public to the extent that the proper firearm certification of former law enforcement officers generally affects public safety.
The proposed rules governing the procedures and standards for the qualification and certification of firearms instructors by DOJ under s.
175.60 (4) (b), Stats., will directly affect the interests of all eligible persons who wish to apply for such certification. The proposed rules identifying those firearm instructors who are certified by a national or state organization, as provided in s.
175.60 (4) (a), Stats., will directly affect the interests of all persons who wish to claim such certification as a basis for providing training in firearms and firearm safety under that statute. In addition, the proposed rules will also indirectly affect the interest of the general public to the extent that the proper certification of firearms instructors generally affects public safety.
Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
For persons other than current and former law enforcement officers, the regulation of the carrying of concealed weapons is primarily governed at the state level. Numerous federal statutes and regulations restrict the possession of weapons that have been shipped in interstate commerce, but there are no federal regulations that relate to the licensing of concealed carry by such persons, nor are there federal regulations governing the certification of firearms instructors for concealed carry purposes.
For qualified current and former law enforcement officers, state and local laws restricting the carrying of concealed firearms are federally preempted by 18 U.S.C. §§ 926B-926C (commonly referred to as “H.R. 218"). The provisions in
2011 Wis. Act 35 related to qualified current and former law enforcement officers are state-law codifications of the corresponding provisions in H.R. 218. Similarly, the rules proposed here governing procedures and standards for the issuance and administration of concealed carry certification cards for qualified former federal law enforcement officers also codify corresponding provisions in the federal law.
Contact Person
Assistant Attorney General Clayton P. Kawski, (608) 266-7477.
Natural Resources
Fish, Game, etc., Chs.
NR 1—
This statement of scope was approved by the governor on August 24, 2011.
Subject
Revises Chapter
NR 47, relating to the proposed establishment of rules for the WFLGP for Weed Management Areas.
Objective of the Proposed Rule
The objective of this proposed rule change is to create Chapter
NR 47 Subchapter
XIII which establishes the rules for the Wisconsin Forest Landowner Grant Program WFLGP for groups interested in controlling invasive plants in weed management areas authorized in 2007-09 Biennial Budget
(2007 Wis. Act 20).
Description of Policy Issues/Analysis of Policy Alternatives
The creation of Chapter
NR 47 Subchapter
XIII - The Private Forest Landowner Grant Program for Weed Management Areas (WMA) will provide for the implementation and administration of the WFLGP for groups in WMAs authorized in
2007 Wis. Act 20. Rules development will include a system to implement and administer the program; eligible practices; criteria for determining the amount of a matching grant; eligibility requirements for groups receiving grants; requirements for grants; and requirements for establishing weed management areas.
Economic Impact
Level 3 – Little to no economic impact expected. There would be no implementation costs for the Department.
Statutory Authority
Statutory authority for creation of this rule can be found in s.
26.38, Wis. Stats.
Estimate of Time Needed to Develop the Rule
The Department estimates that approximately 155 hours of existing staff time will be needed to develop this rule. This time includes collecting public input at listening sessions, drafting the rule, taking the rule to public hearings, presentations to the Natural Resource Board, legislative review, and rule adoption.
Summary and Comparison of Applicable Federal Regulations
There are no known federal rules which apply to the creation of WFLGP for groups in WMA.
Entities Affected by the Rule
□ Non-industrial private forestland owners wishing to apply for grants to create a forest stewardship plan or implement a forestry practice on their land.
□ Any party, organized landowner group, or organization wishing to apply for a grant for the control of invasive plants.
□ Division of forestry staff involved in the administration of the grant programs.
□ Federal, state and local agencies interested in the control of invasive plants or the implementation of forestry practices on non-industrial private forestland.
□ Any cooperating forester, restoration/landscape consultant, farm coops or other private businesses that may be hired to implement a practice under either grant program.
Agency Contact Person
WFLGP for WMA
Thomas Boos II
Wisconsin Department of Natural Resources
101 South Webster Street
P.O. Box 7921
Madison WI 53707-7921
608-266-9276
Parole Commission
The statement of scope for this rule, SS 410-PAC 1-Sentence Modifications, was approved by the governor on August 4, 2011.
Subject
Revises Chapter
PAC 1, relating to the repeal under
2011 Wis. Act 38 of statutory provisions relating to modification of sentences under s.
973.01, Stats.
Description of the Objective of the Rule
The objective of the rule is to bring Chapter PAC 1 into compliance with
2011 Wis. Act 38. The legislature repealed the provisions of
2009 Wis. Act 28, relating to modification of bifurcated sentences under s.
973.01, Wis. Stats. The commission seeks to repeal and amend the provisions of Chapter
PAC 1 which were promulgated in response to
2009 Wis. Act 28.
Description of Existing Policies and New Policies Included in the Proposed Rule and An Analysis of Policy Alternatives
In response to
2009 Wis. Act 28, the commission promulgated rules to address mechanisms for modification of bifurcated sentences under s. 973.01, Stats. The legislature recently repealed the provisions of Act 28. (See
2011 Wis. Act 38.) The commission seeks to repeal and amend the provisions of Chapter
PAC 1, relating to modification of bifurcated sentences to come into compliance with
2011 Wis. Act 38.
Failure to engage in the rule making process will result in the commission's rules not being in compliance with
2011 Wis. Act 38.
Statutory Authority
Estimate of the Amount of Time State Employees will Spend Developing the Proposed Rule and of Other Resources Necessary to Develop the Rule
The commission estimates that it will take approximately 50 hours to develop this rule, including drafting the rule and complying with rulemaking requirements.
Description of All of the Entities that will be Affected by the Rule
The rule affects persons who are convicted of criminal offenses and receive a sentence under s.
973.01, Stats., Department of Corrections staff, and Parole Commission staff.
Summary of and Preliminary Comparison with Any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
There are no federal regulations which address the issue of modification of sentences under s.
973.01, Wis. Stats.
Contact Person
Kathryn R. Anderson, Chief Legal Counsel, Wisconsin Department of Corrections, 3099 East Washington Avenue, P.O. Box 7925, Madison, WI 53707-7925, (608) 240-5049,
kathryn.anderson@wisconsin.gov.
Public Defender Board
This statement of scope was approved by the governor on August 9, 2011.
Subject
Revises section
PD 3.03, relating to determination of financial eligibility.
Objective of the Rule
Proposed changes to section
PD 3.03 are made in response to the directives of
2011 Act 32.
Changes to Existing Law and Statutory Authority for changes
Wis. Stats. s.
977.02 authorizes the State Public Defender Board to promulgate rules regarding indigency and eligibility for legal services. In determining indigency, s.
977.02 (3) directs the State Public Defender to consider a person's available assets and income. Section
977.02 (3) (c) directs the SPD to consider as income only that income which exceeds the income limitations in s.
49.145 (3) (b). The executive budget act of the 2011 legislature, Act 32, sections 3559d and 3559h, made the following changes to the way by which the SPD considers the assets and income of persons applying for public defender representation.
Assets:
Prior legislation,
2009 Act 164, directed the State Public Defender, in determining whether someone was eligible for public defender representation, to consider assets in the manner described in s.
49.145 (3) (a) (Wisconsin Works).
2011 Act 32 changed these Act 164 provisions relating to W2, and directs the SPD to make the eligibility determination based on a combined equity value of available assets, without regard to asset valuation under Wis. Stats. s.
49.145 (3) (a).
Income:
Prior legislation,
2009 Act 164, tied eligibility to the federal poverty guidelines. Under prior legislation, eligibility for public defender representation would automatically change if the federal poverty guidelines were adjusted.
Pursuant to
2011 Act 32, eligibility will not automatically change when the federal poverty guideline is updated. Instead, income eligibility is frozen at 115% of the 2011 federal poverty guideline. Thus, in the event the federal poverty guideline changes, eligibility for state public defender representation will still be determined by the 2011 rate.
Time and Resources Necessary to Develop the Rule
Changes mandated by
2011 Act 32 are ministerial in nature and will not require extensive expenditures of time or resources.
Entities that May be Affected by the Rule
Over time, as the poverty line adjusts, counties will spend additional resources on persons who do not qualify for State public defender representation.
There are No Federal Regulations Governing this Area.
Public Defender Board
This statement of scope was approved by the governor on August 16, 2011.
Relating to
Payment of legal fees; ability to pay; indigency.
Description of the Objective of the Rule
Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
Wis. Stats. s.
977.02 authorizes the State Public Defender Board to promulgate rules regarding eligibility for legal services.
Prior legislation,
2009 Act 164, tied eligibility and ability to pay for SPD representation to the federal poverty guidelines. Pursuant to
2011 Act 32, sections
3559(d) and
3559(h) the guidelines used for determining whether someone is eligible for, and has ability to pay for, SPD representation will not automatically change when the federal poverty guideline is updated. Instead, the guidelines for income eligibility for representation and income available to repay the SPD for that representation, are frozen at 115% of the 2011 federal poverty guideline.
Statutory Authority for the Rule (Including the Statutory Citation and Language)
Pursuant to Wis. Stats. s.
977.02 (3) (b),
977.02 (3) (c), and
977.02 (4m), the SPD is directed to promulgate rules related to the ability of persons eligible for SPD representation to re-pay the cost of that representation.
Estimate of the Amount of Time that State Employees Will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
Changes mandated by
2011 Act 32 are ministerial in nature and will not require extensive expenditures of time or resources.
Description of All Entities that May be Impacted by The Rule
Over time, as the poverty line adjusts, counties will spend additional resources on appointing attorneys to represent persons who do not qualify for State public defender representation but cannot afford to retain private counsel.
Summary and Preliminary Comparison of Any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
N/A.
Contact Person
Kathleen Pakes, Legal Counsel, State Public Defender, (608) 261-0633.
Revenue
This scope statement was approved by the governor on August 16, 2011.
Rule No.
Relating to
Requirements for fermented malt beverage wholesalers' permits and authorized activities for persons holding wholesalers' and brewers' permits.
Description of the Objective of the Rule
The objective of the proposed rule changes is to administer the provisions of ss.
125.28 (5) (e) and
125.29 (3), Stats., as created by
2011 Wisconsin Act 32, and reflect revisions made by the Act to the authorized activities of persons holding wholesalers' and brewers' permits.
Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
Existing policies are as set forth in the rules. No new policies are being proposed, other than to reflect law changes. If the rules are not changed, they will be incorrect in that they will not reflect current law or current Department policy.
Section
125.28 (5) (e), Stats., as created by
2011 Wisconsin Act 32, requires the Department to promulgate rules to administer and enforce the requirements for fermented malt beverage wholesaler's permits under the Act. In addition, Act 32 converted the wholesaler's license issued by a local municipality to a statewide permit issued by the Department of Revenue and revised the authorized activities for wholesalers and brewers. These law changes must be reflected appropriately in Chapter
Tax 7.
Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section
125.03, Stats., provides “[t]he department, in furtherance of effective control, may promulgate rules consistent with this chapter and ch.
139."
Section
125.28 (5) (e), Stats., as created by
2011 Wisconsin Act 32, provides “[t]he department shall promulgate rules to administer and enforce the requirements under this subsection. The rules shall ensure coordination between the department's issuance and renewal of permits under this section and its enforcement of the requirements of this subsection, and shall require that all applications for issuance or renewal of permits under this section be processed by department personnel generally familiar with activities of fermented malt beverages wholesalers. The department shall establish by rule minimum requirements for warehouse facilities on premises described in permits issued under this section and for periodic site inspections by the department of such warehouse facilities."
Section
227.24 (1) (a), Stats., provides “[a]n agency may promulgate a rule as an emergency rule without complying with the notice, hearing and publication requirements under this chapter if preservation of the public peace, health, safety or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures."
Estimate of the Amount of Time that State Employees will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
The department estimates it will take approximately 175 hours to develop the emergency and proposed permanent rule orders.
Description of All Entities that May be Impacted by the Rule
Municipal fermented malt beverage wholesaler licensees and retailer licensees, holders of brewer, brewpub and out-of-state shippers' permits, and all cities, villages, and towns issuing fermented malt beverage licenses.
Summary and Preliminary Comparison of Any Existing or Proposed Federal Regulation that Is Intended to Address the Activities to be Regulated by the Rule
The Federal Alcohol Administration Act, Title 27 United States Code, contains provisions regarding the qualification and operation of alternating proprietors at breweries and contract brewing arrangements as regulated by the U.S. Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau (TTB). The department's emergency and proposed rule orders will be influenced by these regulations, but will not interfere with or duplicate them.
Contact Person
Dale Kleven (608) 266-8253.
Transportation
This statement of scope was approved by the governor Scope on August 18, 2011.
Subject
Revises Chapter
Trans 327, relating to motor carrier safety.
Description of the Objective of the Rule
The federal regulations at
49 CFR 383 and
391 were revised by “Medical Certification Requirements as Part of the CDL", 73 FR 73096 (Dec. 1, 2008; RIN 2126-AA10). This rule implements new federal requirements for commercial drivers obtaining and submitting medical certificates conformity with those federal regulations. Section
343.065 (3) of the statutes, created
2011 Wisconsin Act 32, requires the department to downgrade commercial drivers licenses of drivers who fail to provide federally mandated medical certifications, and to promulgate rules defining this downgrade process.
This rule-making will allow the department to:
•
define the procedures for drivers to certify their driving type (Tier) to the department;
•
create the process for downgrading a license and reinstating a license after the downgrade has occurred; and
•
describe the types of notifications drivers and employers will receive prior to the federal medical card expiration; when the driver is downgraded; and when the driver is reinstated.
Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
Starting in January 2012, all original and renewal applicants for a commercial driver's license must certify their driving type (Tier). Drivers operating in interstate commerce who are not subject to the exceptions identified (Tier 1) also must furnish a copy of their federal medical certificate (sometimes called a “Fed Med card") to the department. The department must electronically capture the information on the federal medical certificate, and retain a copy of the federal medical certificate on file.
In January 2014, ALL persons in Wisconsin that hold a commercial driver's license (CDL) will be required to comply with these requirements as well. The department will downgrade drivers that fail to comply with these requirements in accordance with the procedures defined below.
These federal regulations, as well as s.
343.065 (3), stats., require the department to downgrade a driver's commercial driving privileges if the driver is operating in non-excepted interstate commerce (Tier 1) and fails to submit a federal medical certificate or to keep his or her federal medical certificate current.
Several alternatives exist to implementing these new regulations for allowing drivers to certify their driving type as well as the downgrade process.
Alternatives for Commercial Drivers to Certify Driving Type:
1. Require all drivers subject to these requirements to visit a DMV field service station to select their Tier of driving and provide proof of their federal medical certificate.
This approach is cumbersome, and will not work for Wisconsin drivers who are currently out of state.
2. Require all drivers to certify their driving type and provide federal medical certificate information electronically to DMV.
This approach will not work for drivers with limited access to computers and the Internet.
3. Create a hybrid system that allows drivers to choose to certify and provide federal medical documentation electronically, or to certify and present the federal medical certificate in person at a DMV field station.
This approach will allow drivers and their employers' flexibility to provide this information. As such, the department will pursue this approach.
Alternatives for Downgrade Process:
In addition, the federal regulations offer several alternatives for downgrading a CDL for drivers that are operating in interstate, non-excepted commerce (Tier 1). Note: this downgrade does not apply to drivers in the other Tiers and they are NOT required to provide updated federal medical information to the department.
1. Change the driver's certification of their driving type to operating exclusively in interstate, excepted commerce (Tier 2), intrastate commerce (Tier 3) or intrastate, excepted commerce (Tier 4).
Drivers operating in interstate, excepted commerce or any type of intrastate commerce must have special restrictions printed on their CDL. As such, if the department pursued this alternative, we would have to re-issue the CDL every time a Tier 1 driver was downgraded. To remove the downgrade, drivers would have to visit a DMV field station, provide their federal medical certificate, and pay a fee for a duplicate license. This will be cumbersome and difficult for Wisconsin CDL drivers who are currently out of state. This approach would also require considerable staff resources and potential delays for drivers, since DMV field stations are not open seven days a week.
2. Remove the CDL privileges from the driver's license.
The CDL privileges will be removed from the driver's license using a “voluntary temporary surrender" (VTS), which will appear on the electronic record only. The driver's commercial classes and endorsements will remain printed on the license document, but they will not be able to legally operate in interstate commerce until a copy of an updated federal medical certificate is provided to the department.
While this alternative may seem unduly burdensome, it is actually much easier for the driver to get their privileges back. They (or their employer) can submit their federal medical certificate to the department either in person or electronically via our secure web system.
In addition, the drivers retain their current driver's licenses, and will not be required to pay a fee to regain their commercial operating privileges. The department will pursue this approach for downgrading.
Other policy items:
The department plans to use the VTS process for commercial drivers who may be revoked, suspended, or disqualified for other reasons. The VTS allows us to track the federal medical requirements as well as the underlying reason for the suspension, revocation, or disqualification.
In accordance with federal regulations, the department will notify Tier 1 commercial drivers 60 days prior to the expiration of their federal medical certificate. If we do not receive an updated federal medical certificate, the driver will be downgraded ten days after the expiration of the current federal medical certificate, using the VTS process described above. The driver will receive notification of this action.
The department also plans to use our Employer Notification system to provide up-to-date information to employers about each of their drivers' selected Tier of operation and current status of their federal medical certificates.
This rule-making also addresses the licensing action that will be taken for drivers who present fraudulent federal medical cards. The department will cancel these licenses, which is the same action taken on a driver who presents fraudulent information for a regular, Class D license.
Statutory authority for the rule (including the statutory citation and language)
2011 Wisconsin Act 32 (the biennial budget bill) created s.
343.065 (1) (a) which gives the department authority to downgrade a commercial driver license if a federal medical certificate is not on file.
In addition, s.
343.065 (1) (b) requires the department to promulgate rules to define the process for downgrading a license in accordance with federal law and regulations. This paragraph also directs the rule-making to include whether or not a new commercial driver license document will be issued after the downgrade, and establish a process for reinstating a downgraded license after appropriate medical certification is received.
Estimate of the Amount of Time that State Employees will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
It is estimated this rule will take approximately 250 hours to develop. Other resources necessary to successfully implement the rule include computer programming resources and an outreach campaign to affected commercial drivers and other interested stakeholders.
Description of All Entities that may be Impacted by the Rule
This rule will affect all Wisconsin drivers who currently hold a Commercial Driver License (CDL). As of December 2010, there were 289,596 persons holding commercial drivers licenses, of which 224,860 were valid (not withdrawn or expired). It will also impact motor carrier companies, employers of commercial drivers, law enforcement, other state driver licensing agencies, and the Federal Motor Carrier Safety Administration.
Summary and Preliminary Comparison of Any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
This rulemaking is intended to ensure Wisconsin's compliance with new federal regulations in
49 CFR Part 383 and
391, requiring drivers of commercial motor vehicles to certify their type of driving to the department and submit a copy of their federal medical certificate to the department.
All states are required to comply with these new regulations.
Contact Person
Erin Egan (608) 266-9901.
