Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 674, 2/29/2012

Rule-Making Notices

Notice of Hearing

Employee Trust Funds

CR 12-020

NOTICE IS HEREBY GIVEN That The Wisconsin Department of Employee Trust Funds (ETF) proposes an order pursuant to section 227.14, Stats., to repeal section ETF 10.10 (13); to repeal and recreate sections ETF 10.10 (3), (4), (6), (7) and (9); to amend sections ETF 10.10 (1), (1m), (2), (8), (10), (11) and (12); to renumber and amend sections ETF 10.10 (15), (16) and (17); and create sections ETF 10.10 (5) and (16), relating to elections to the Employee Trust Funds and Teachers Retirement Board.

Hearing Information

Date:   Monday, March 26, 2012

Time:   3:00 P.M.

Location:   Department of Employee Trust Funds
  801 West Badger Road
  Conference Room GA
  Madison, WI 53713

Persons wishing to attend should come to the reception desk located up the stairs and directly to the left (or by elevator) from the main entrance to the building.

Copies of Proposed 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. The telephone number is: [phone].

Place Where Comments are to be Submitted and Deadline for Submissions

Comments may be submitted to the contact person no later than 4:30pm, Central Standard Time, on Monday, April 2, 2012. The public hearing will be held at 3:00pm on Monday, March 26, 2012 in conference room GA of the Wisconsin Employee Trust Fund building at 801 W. Badger Rd, Madison, WI 53713.

Analysis Prepared by the Department of Employee Trust Funds

Statutes interpreted

Section 40.03 (2) (p), Stats.

Statutory authority

Sections 40.03 (2) (i), and 227.11 (2) (a) (intro), 1. to 3., Stats.

Explanation of agency authority

By statute, the ETF 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.

This rule is not subject to s. 227.135 (2), as affected by 2011 Wis. Act 21. The scope statement for this rule, submitted to the Legislative Reference Bureau on 03/16/2010 and published in Register No. 651b on 04/01/2010, was sent to the Legislative Reference Bureau prior to June 8, 2011, the effective date of 2011 Wis. Act 21.

Related statute or rule

Section 40.03 (2) (p), Stats.

Plain language analysis

(a)   Clarify statutory authority of the ETF Secretary to hold board elections in any reasonable manner, including by electronic means.

  When warranted, holding board elections electronically can promote efficiency and minimize costs. It is clear that the Secretary has authority under s. 40.03 (2) (p), Stats., to choose the means of holding board elections. However, the provisions in the existing administrative rule contemplate only a paper-based board election process. The changes to the rule provide that the Secretary may choose to hold a board election using a paper-based process, electronically by use of the Internet, by a combination of methods or by any other reasonable means.

(b)   Simplify Wis. Admin. Code section ETF 10.10

  Changes have been made to make provisions in Wis. Admin. Code section ETF 10.10 more understandable and eliminate provisions that create inefficiencies. Some of the clarification in language includes: creation of section headers, re-arranging and renumbering of subsections, additional definitions, and breaking-up sections into subparagraphs.

Summary of, and comparison with, existing or proposed federal regulations

There are no existing or proposed federal regulations relevant to electronic elections for board members of public pension systems.

Comparison with rules in adjacent states

Illinois – The relevant regulations governing board elections to the State Employees' Retirement System of Illinois are found in 80 Ill. Adm. Code 1540.330, Board Elections. The code sets forth procedures for standard paper ballot elections, and does not include provisions for electronic voting.

Iowa – Iowa law establishes the Iowa Benefits Advisory Committee (BAC) under Iowa Code section 97B.8B. Regulations governing the BAC are provided in IAC 495-3.1. State law gives Iowa Public Employees' Retirement System authority to adopt election rules, however the regulations do not provide for election procedures. There are likewise no regulations governing or authorizing electronic voting methods.

Michigan – M.C.L.A. 38.3 governs membership for the Retirement Board of the State Employees' Retirement System. Members are appointed in different employment categories by the governor. Similarly, under M.C.L.A. 38.1322, the governor appoints members to the board of the Public School Employees' Retirement System. Because members are appointed, there are therefore no regulatory provisions governing elections, including electronic voting procedures.

Minnesota – Regulations governing board elections for the Minnesota State Retirement System are found in Chapter 7900. The regulations cover standard paper ballots and do not include special provisions for electronic voting procedures.

Summary of factual data and analytical methodologies

ETF worked closely with the Employee Trust Funds Board and Teachers Retirement Board in formulating the needs for electronic voting methods. The rule was put before the boards on two occasions for input and commentary. Analysis hinged on the benefits of paperless elections, including: efficiency and cost, and convenience for voters.

Accuracy, integrity, objectivity and consistency of data

The present rule changes were a result of recommendations from the relevant governing boards and considerations of the efficiency and convenience attributable to electronic voting procedures. ETF conducted analysis with integrity in an accurate, objective, and consistent manner in accordance with its fiduciary responsibilities to its members.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

The rule does not have an effect on small businesses because the elections rule governs procedures for electing members to governing boards of a public agency whose members are public employees or annuitants.

Effect on Small Business

There is no effect on small business.

Agency Contact Person

Steve Hurley, Director of the Office of Policy, Privacy and Compliance, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Telephone: [phone]. E-mail address: [e-mail].

Fiscal Estimate

The rule will not have any fiscal effect on the administration of the Wisconsin Retirement System, nor will it have any fiscal effect on the private sector, the state or on any county, city, village, town, school district, technical college district, or sewerage districts.

ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
ETF 10.10 Employee trust funds board and teachers retirement board elections
Subject
Election of members to employee trust funds and teachers retirement board
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
GPR FED PRO PRS SEG SEG-S
Fiscal Effect of Implementing the Rule
X No Fiscal Effect Indeterminate	Increase Existing Revenues Decrease Existing Revenues		Increase Costs Could Absorb Within Agency's Budget Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? Yes X No
Policy Problem Addressed by the Rule
ETF seeks to clarify the Secretary's authority under s. 40.03 (2) (p), Stats., to choose alternate means of holding elections of members to the Teachers Retirement Board and Employee Trust Funds Board. When warranted, holding board elections electronically can promote efficiency and minimize costs. Additional changes to the rule are made for the simplification of the elections provisions.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
There is no economic and fiscal impact on small business, business sectors, public utility rate payers, local governmental units and the state's economy as a whole. The rule change addresses the need to clarify statutory authority of the ETF Secretary to hold board elections in any reasonable manner, including electronic means, and to simplify the current code governing board elections procedures. These changes will not have a fiscal effect.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Implementing the rule changes will provide more clarity in the board elections rule, and will afford the Secretary the authority to utilize electronic voting methods in electing members to the board. Electronic voting will provide cost-effective, efficient, faster, and more convenient options for board elections.
Long Range Implications of Implementing the Rule
There are no long range economic or fiscal impacts of the rule.
Compare With Approaches Being Used by Federal Government
Electronic voting methods have become increasingly utilized in all layers of government.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Illinois – The relevant regulations governing board elections to the State Employees' Retirement System of Illinois are found in 80 Ill. Adm. Code 1540.330, Board Elections. The code sets forth procedures for standard paper ballot elections, and does not include provisions for electronic voting.   Iowa – Iowa law establishes the Iowa Benefits Advisory Committee (BAC) under Iowa Code section 97B.8B. Regulations governing the BAC are provided in IAC 495-3.1. State law gives Iowa Public Employees' Retirement System authority to adopt election rules, however the regulations do not provide for election procedures. There are likewise no regulations governing or authorizing electronic voting methods.   Michigan – M.C.L.A. 38.3 governs membership for the Retirement Board of the State Employees' Retirement System. Members are appointed in different employment categories by the governor. Similarly, under M.C.L.A. 38.1322, the governor appoints members to the board of the Public School Employees' Retirement System. Because members are appointed, there are therefore no regulatory provisions governing elections, including voting procedures.   Minnesota – Regulations governing board elections for the Minnesota State Retirement System are found in Chapter 7900. The regulations cover standard paper ballots and do not include special provisions for electronic voting procedures.

Notice of Proposed Rulemaking
Without Public Hearing

Public Defender Board

CR 12-017

The State of Wisconsin Public Defender Board (SPD) announces the revision of section PD 3.03, relating to determination of financial eligibility, the determination of eligibility for the assignment of publicly appointed counsel.

The proposed rule brings an existing rule into conformity with sections 977.02 (3) (b) and (c), Stats., enacted pursuant to 2011 Act 32. Pursuant to section 227.16 (2) (b), Stats., a public hearing is not required.

Submittal of Written Comments

Interested persons are invited to comment on the rule by March 15, 2012. Written comments should be addressed to: Kathy Pakes, SPD, PO Box 7923, Madison, WI 53707-7923, or by email: [e-mail].

Copies of Proposed Rule

To view the rule online, go to:
http://www.wisspd.org/CAR2.asp

To view the rule fiscal note online, go to:
http://www.wisspd.org/CAR2.asp

You may contact Kathy Pakes at [e-mail] or by telephone at [phone] to request a copy (at no cost) of the rule and fiscal note be sent to you by U.S. mail.

Analysis Prepared by the Wisconsin Public Defender Board

Statutes interpreted

Section 977.02.

Statutory authority

Sections 977.02 (3) (b) and (c); 977.06; Wis. Stats. and s. 977.02 (3) authorizes the State Public Defender Board to promulgate rules regarding indigency and eligibility for legal services. In determining indigency, Wis. Stats. ss. 977.02 (3) (b) & (c) directs the State Public Defender to consider a person's available assets and income.

Explanation of agency authority

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, s. 3559d 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). See Wis. Stats. s. 977.02 (3) (b).

Income:

Prior legislation, 2009 Act 164, directed the SPD to use 115% of the federal poverty guidelines as the applicable cost of living when making a determination of eligibility. Under prior legislation, eligibility for public defender representation would automatically change if the federal poverty guidelines were adjusted.

Pursuant to 2011 Act 32, s. 3559h eligibility will not automatically change when the federal poverty guideline is updated. Instead, for purposes of determining eligibility, the cost of living is frozen at 115% of the 2011 federal poverty guideline. Thus, in the event the federal poverty guideline changes, the state public defender will still use 115% of the 2011 rate in its determination of financial eligibility. See, Wis. Stats. s. 977.02 (3) (c).

Related statute or rule

None.

Plain language analysis

2011 Act 32 froze income eligibility for state public defender representation at 115% of the 2011 federal poverty guidelines. These changes bring the administrative rules into conformity with Act 32.

Summary of, and comparison with, existing or proposed federal regulations

In the federal system, the Criminal Justice Act (CJA) requires that representation be provided to financially eligible persons for proceedings and matters covered by the CJA.

The determination of eligibility for representation under the CJA is a judicial function to be performed by the court or U.S. magistrate judge after making appropriate inquiries concerning the person's financial condition. Unless it will result in undue delay, fact-finding concerning the person's eligibility for appointment of counsel should be completed prior to the person's first appearance in court. [Guide, § 210.40.20(a), (b)]

A person is considered “financially unable to obtain counsel" within the meaning of the CJA [18 U.S.C. § 3006A(b)] if the person's net financial resources and income are insufficient to obtain qualified counsel. In determining whether such insufficiency exists, consideration should be given to:

•   the cost of providing the person and the person's dependents with the necessities of life, and

•   the cost of the defendant's bail bond if financial conditions are imposed, or the amount of the deposit defendant is required to make to secure release on bond.

Any doubts as to a person's eligibility should be resolved in the person's favor; erroneous determinations of eligibility may be corrected at a later time. At the time of determining eligibility, the court or U.S. magistrate judge should inform the person of the penalties for making a false statement, and of the obligation to inform the court and the person's attorney of any change in financial status.

Comparison with rules in adjacent states

Iowa: Iowa Code sec. 815.9

Eligibility for public defender representation is tied to the United State poverty level as defined by the most recently revised poverty income guidelines published by the United States department of health and human services. Generally, a person with an income level at or below 125% of the federal poverty guidelines will qualify for public defender representation. Persons with an income of 125% to 200% of the federal poverty guidelines may qualify for public defender representation if the court finds not appointing counsel would cause the person substantial hardship.

Illinois:

Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis.

Michigan:

Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis.

Minnesota:

Has a statewide public defender system. Guidelines for those persons who qualify for representation may be viewed at: http://www.house.leg.state.mn.us/hrd/pubs/ss/ssmpds.htm

In Minnesota a defendant is financially unable to obtain counsel if the defendant, or a defendant's dependent (residing in the same household), receives means-tested governmental benefits, or, considering the defendant's liquid assets and current income, the defendant would be unable to pay the reasonable costs charged by a private attorney.

Upon disposition of the case, the defendant must pay a $28 co-payment, unless the court waives the co-payment. The statute does not indicate when a court should exercise its discretion to waive the co-payment. In 2003, the Minnesota Court of Appeals held that a defendant is exempt from the co-payment and the court must waive the co-payment when a defendant is indigent or when the co-payment would cause manifest hardship on a defendant.

Summary of factual data and analytical methodologies

N/A

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

N/A

Effect on Small Business

None.

Fiscal Estimate

http://www.wisspd.org/CAR2.asp

Agency Contact Person

Questions regarding these rules may be directed to Kathy Pakes at [e-mail] or 315 N. Henry Street, 2nd Floor, Madison, WI 53703.

Proposed Rule

PD 3.03 (2) and (3) are amended to read:

PD 3.03 (2) The state public defender shall consider assets in the manner described in s. 49.145 (3) (a), Stats., and shall consider assets as available to pay the costs of legal representation if the assets exceed the resource limitations of s. 49.145 (3) (a), Stats., treat assets as available to the person to pay the costs of legal representation if the assets exceed $2500 in combined equity value except that the state public defender shall exclude the equity value of vehicles up to a total equity value of $10,000 and shall exclude the first $30,000 of the equity value of the home that serves as the individual's homestead. exclusion from consideration for the applicant's homestead shall be limited to the first $30,000 of equity .

(3) Subject to subs. (4) and (5), the state public defender shall consider income as available to pay the costs of legal representation if the gross income exceeds 115 percent of the amount specified in 42 U.S.C. s. 9902(2) (2011) the income limitations of s. 49.145 (3) (b), Stats.

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
Original X Updated Corrected
Administrative Rule Chapter, Title and Number
PD 3.03; PD 6.025
Subject
Eligibility Guidelines for Public Defender Representation
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
X GPR FED PRO PRS SEG SEG-S			20.550 (1)
Fiscal Effect of Implementing the Rule
No Fiscal Effect X Indeterminate	Increase Existing Revenues Decrease Existing Revenues		X Increase Costs Could Absorb Within Agency's Budget Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy X Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? Yes X No
Policy Problem Addressed by the Rule
Wis. Stats. Sec. 977.02 authorizes the State Public Defender Board to promulgate rules regarding indigency and eligibility for legal services. In determining indigency, Sec. 977.02 (3) directs the State Public Defender to consider a person's available assets and income. Sec. 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. Sec. 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.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
As the federal poverty guideline is adjusted upward, and the eligibility for public defender representation remains stagnant at the 2011 level, local governments (counties) will pick up the cost to represent those defendants who earn more than the 2011 federal poverty guidelines, but do not have funds to hire a lawyer and are deemed eligible by the courts for representation.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
N/A
Long Range Implications of Implementing the Rule
As the federal poverty guideline is adjusted upward, and the eligibility for public defender representation remains stagnant at the 2011 level, the counties will pick up the cost to represent those defendants who earn more than the 2011 federal poverty guidelines, but do not have funds to hire a lawyer and are deemed eligible by the courts for representation.
Compare With Approaches Being Used by Federal Government
In the federal system, the Criminal Justice Act (CJA) requires that representation be provided to financially eligible persons for proceedings and matters covered by the CJA. The determination of eligibility for representation under the CJA is a judicial function to be performed by the court or U.S. magistrate judge after making appropriate inquiries concerning the person's financial condition. Unless it will result in undue delay, fact-finding concerning the person's eligibility for appointment of counsel should be completed prior to the person's first appearance in court. [Guide, § 210.40.20(a), (b)] A person is considered “financially unable to obtain counsel" within the meaning of the CJA [18 U.S.C. § 3006A(b)] if the person's net financial resources and income are insufficient to obtain qualified counsel. In determining whether such insufficiency exists, consideration should be given to: •   the cost of providing the person and the person's dependents with the necessities of life, and •   the cost of the defendant's bail bond if financial conditions are imposed, or the amount of the deposit defendant is required to make to secure release on bond. Any doubts as to a person's eligibility should be resolved in the person's favor; erroneous determinations of eligibility may be corrected at a later time. At the time of determining eligibility, the court or U.S. magistrate judge should inform the person of the penalties for making a false statement, and of the obligation to inform the court and the person's attorney of any change in financial status.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Iowa: Iowa Code sec. 815.9 Eligibility for public defender representation is tied to the United State poverty level as defined by the most recently revised poverty income guidelines published by the United States department of health and human services. Generally, a person with an income level at or below 125% of the federal poverty guidelines will qualify for public defender representation. Persons with an income of 125% to 200% of the federal poverty guidelines may qualify for public defender representation if the court finds not appointing counsel would cause the person substantial hardship. Illinois: Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis. Michigan: Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis. Minnesota: Has a statewide public defender system. Guidelines for those persons who qualify for representation may be viewed at: http://www.house.leg.state.mn.us/hrd/pubs/ss/ssmpds.htm In Minnesota a defendant is financially unable to obtain counsel if the defendant, or a defendant's dependent (residing in the same household), receives means-tested governmental benefits, or, considering the defendant's liquid assets and current income, the defendant would be unable to pay the reasonable costs charged by a private attorney. Upon disposition of the case, the defendant must pay a $28 co-payment, unless the court waives the co-payment. The statute does not indicate when a court should exercise its discretion to waive the co-payment. In 2003, the Minnesota Court of Appeals held that a defendant is exempt from the co-payment and the court must waive the co-payment when a defendant is indigent or when the co-payment would cause manifest hardship on a defendant.

Notice of Proposed Rulemaking
Without Public Hearing

Public Defender Board

CR 12-018

The State of Wisconsin Public Defender Board (SPD) announces the revision of section PD 6.025, relating to determination of ability to pay, relating to whether persons subject for payment for legal representation have the ability to pay all, or part of, the costs of representation.

The proposed rule brings an existing rule into conformity with sections 977.02 (3) (b) and (c), Stats., enacted pursuant to 2011 Act 32. Pursuant to section 227.16 (2) (b), Stats., a public hearing is not required.

Submittal of Written Comments

Interested persons are invited to comment on the rule by March 15, 2012. Written comments should be addressed to: Kathy Pakes, SPD, PO Box 7923, Madison, WI 53707-7923, or by email: [e-mail].

Copies of Proposed Rule

To view the rule online, go to:
http://www.wisspd.org/CAR2.asp

To view the rule fiscal note online, go to:
http://www.wisspd.org/CAR2.asp

You may contact Kathy Pakes at [e-mail] or by telephone at [phone] to request a copy (at no cost) of the rule and fiscal note be sent to you by U.S. mail.

Analysis Prepared by the Wisconsin Public Defender

Statutes interpreted

Section 977.02.

Statutory authority

Sections 977.02 (3) (b) and (c); 977.06.

Explanation of agency authority

Wis. Stats. s. 977.02 (3) authorizes the State Public Defender Board to promulgate rules regarding indigency and eligibility for legal services. In determining indigency, Wis. Stats. s. 977.02 (3) (b) and (c) directs the State Public Defender to consider a person's available assets and income.

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 Wis. Stats. 49.145 (3) (a), (Wisconsin Works). 2011 Act 32, s. 3559d 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). See Wis. Stats. s. 977.02 (3) (b).

Income:

Prior legislation, 2009 Act 164, directed the SPD to use 115% of the federal poverty guidelines as the applicable cost of living when making a determination of eligibility. Under prior legislation, eligibility for public defender representation would automatically change if the federal poverty guidelines were adjusted.

Pursuant to 2011 Act 32, s. 3559h eligibility will not automatically change when the federal poverty guideline is updated. Instead, for purposes of determining eligibility, the cost of living is frozen at 115% of the 2011 federal poverty guideline. Thus, in the event the federal poverty guideline changes, the state public defender will still use 115% of the 2011 rate in its determination of financial eligibility. See, Wis. Stats. s. 977.02 (3) (c).

Related statute or rule

None.

Plain language analysis

2011 Act 32 freezes income eligibility for public defender representation at 115% of the 2011 federal poverty guidelines.

Summary of, and comparison with, existing or proposed federal regulations

In the federal system, the Criminal Justice Act (CJA) requires that representation be provided to financially eligible persons for proceedings and matters covered by the CJA.

The determination of eligibility for representation under the CJA is a judicial function to be performed by the court or U.S. magistrate judge after making appropriate inquiries concerning the person's financial condition. Unless it will result in undue delay, fact-finding concerning the person's eligibility for appointment of counsel should be completed prior to the person's first appearance in court. [Guide, § 210.40.20(a), (b)][18 U.S.C. § 3006A(b)]

A person is considered “financially unable to obtain counsel" within the meaning of the CJA http://www.law.cornell.edu/uscode/18/3006A.html - b if the person's net financial resources and income are insufficient to obtain qualified counsel. In determining whether such insufficiency exists, consideration should be given to:

•   the cost of providing the person and the person's dependents with the necessities of life, and

•   the cost of the defendant's bail bond if financial conditions are imposed, or the amount of the deposit defendant is required to make to secure release on bond.

Any doubts as to a person's eligibility should be resolved in the person's favor; erroneous determinations of eligibility may be corrected at a later time. At the time of determining eligibility, the court or U.S. magistrate judge should inform the person of the penalties for making a false statement, and of the obligation to inform the court and the person's attorney of any change in financial status.

Comparison with rules in adjacent states

Iowa: Iowa Code sec. 815.9

Eligibility for public defender representation is tied to the United State poverty level as defined by the most recently revised poverty income guidelines published by the United States department of health and human services. Generally, a person with an income level at or below 125% of the federal poverty guidelines will qualify for public defender representation. Persons with an income of 125% to 200% of the federal poverty guidelines may qualify for public defender representation if the court finds not appointing counsel would cause the person substantial hardship.

Illinois:

Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis.

Michigan:

Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis.

Minnesota:

Has a statewide public defender system. Guidelines for those persons who qualify for representation may be viewed at: http://www.house.leg.state.mn.us/hrd/pubs/ss/ssmpds.htm In Minnesota a defendant is financially unable to obtain counsel if the defendant, or a defendant's dependent (residing in the same household), receives means-tested governmental benefits, or, considering the defendant's liquid assets and current income, the defendant would be unable to pay the reasonable costs charged by a private attorney.

Upon disposition of the case, the defendant must pay a $28 co-payment, unless the court waives the co-payment. The statute does not indicate when a court should exercise its discretion to waive the co-payment. In 2003, the Minnesota Court of Appeals held that a defendant is exempt from the co-payment and the court must waive the co-payment when a defendant is indigent or when the co-payment would cause manifest hardship on a defendant.

Summary of factual data and analytical methodologies

N/A

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

N/A

Effect on Small Business

None.

Fiscal Estimate and Economic Impact Analysis

http://www.wisspd.org/CAR2.asp

See the notice for the revision of s. PD 3.03. (CR 12-017 in this Register)

Agency Contact Person

Questions regarding these rules may be directed to Kathy Pakes at [e-mail] or 315 N. Henry Street, 2nd Floor, Madison, WI 53703.

Place to Submit Comments

Comments may be submitted to Kathy Pakes at [e-mail] or 315 N. Henry Street, 2nd Floor, Madison, WI 53703.

Proposed Rule

PD 6.025 (1) and (2) (a) are amended to read:

PD 6.025 (1) The state public defender shall determine whether persons subject to payment for legal representation have the ability to pay all, or part of, the costs of representation. A person has the ability to pay some amount to these costs if the person has gross income in excess of the amount specified in 42 U.S.C. s. 9902(2) (2011) or has assets treated under s. PD 3.03(2) as available to pay the costs of legal representation.with income in excess of the amount specified in s. 49.001 (5), Stats., or assets available to pay the costs of legal representation under s. PD 3.03 (2) has the ability to pay some amount toward these costs. The state public defender may defer the determination of ability to pay until after the time period for payment of the optional discount amount specified in s. PD 6.02 has expired.

(2) (a) The person has gross income exceeding 115% of the amount specified in 42 U.S.C. s. 9902(2)(2011) or has assets treated under s. PD 3.03(2) as available to pay the costs of legal representation.is determined to have income in excess of the amount specified in s. 49.001 (5), Stats.,or assets available to pay the costs of legal representation under s. PD 3.03 (2).

Notice of Hearing

Safety and Professional Services
Cemetery Board

CR 12-021

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Cemetery Board in sections 227.11 (2) and 961.335 (8), Wis. Stats., and interpreting section 961.335, Wis. Stats., the Cemetery Board will hold a public hearing at the time and place indicated below to consider an order to promulgate Chapters CB 3 to 5, Wis. Admin. Code. The proposed rules relate to the transfer of authority for regulation of warehouses storing cemetery pre-need merchandise, changing trustees of care or pre-need trust funds, and alternative care funds investments from the department of safety and professional services to the cemetery board.

Hearing Information

Date:   Tuesday, March 13, 2012

Time:   9:45 A.M.

Location:   1400 East Washington Avenue
  Room 121A
  Madison, WI 53703

Appearances at the Hearing and Submittal of Written Comments

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions, and argument in writing as well. Facts, opinions, and argument may also be submitted in writing without a personal appearance by mail addressed to the Department of Safety and Professional Services, Division of Board Services, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received at or before the public hearing to be included in the record of rule-making proceedings.

Comments may be submitted to Kris Anderson, Paralegal, Department of Safety and Professional Services, 1400 E. Washington Ave., Rm. 117, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email to [e-mail]. Comments must be received on or before the date and time of the public hearing for inclusion in the record of rule-making proceedings. A public hearing on this proposal will be held at the department on March 13, 2012, in Rm. 121A, at 9:45 a.m.

Copies of Proposed Rule

Copies of this proposed rule are available upon request to Kris Anderson, Paralegal, Department of Safety and Professional Services, Division of Board Services, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708, or by email at [e-mail].

Analysis Prepared by the Department of Safety and Professional Services

Statutes interpreted

Sections 157.11 (9g), 157.19, 440.92 (7), Stats.

Statutory authority

Sections 157.19 (2) (d), 227.11 (2) (a), 440.905 (2), 440.92 (7), Stats.

Explanation of agency authority

2007 Wisconsin Act 174 transferred authority for regulation of warehouses that store cemetery merchandise sold under a preneed sales contract, changes of trustees for care and preneed trust funds, and alternative care fund investments from the department of safety and professional services to the cemetery board. Thus, Ch. 157 and s. 440.905, Stats., grant sole authority for implementation of the laws related to these regulatory areas to the cemetery board.

Plain language analysis

These proposed rules implement the statutory changes that resulted from the passage of 2007 Wis. Act 174. The rules transfer to the cemetery board the authority to regulate: warehouses that store cemetery merchandise sold under a preneed sales contract; changes of trustees for care and preneed trust funds; and alternative care fund investments from the department. The administrative code provisions that Act 174 affected are currently located in Chs. SPS 52 to 54. To reflect the transfer of authority effected by Act 174, the chapter and rule titles must be changed from “SPS" to “CB," and the chapter and rule numbers must be changed from those using 52 to 54 to those using 3 to 5.

The substance of the rules in Chs. SPS 52 to 54, formerly RL 52 to 54, will not change by this proposal. These proposed rules amend those chapters only to reflect the transfer of regulatory authority, the 2011 department name-change, and other minor information updates such as addresses referenced, etc.

Proposed Ch. CB 4 adds some provisions that are closely related to those in existing Ch. SPS 53. First, new s. CB 4.015 defines “financial institution," as used in the chapter, to have the meaning set forth in s. 705.01 (3), Stats. That definition appears in s. 157.19 (1), Stats., and applies to all of s. 157.19, which is the enabling statute for the rules set forth in former Ch. RL 53 and proposed Ch. CB 4, Wis. Admin. Code. The cemetery board adds this definition to the existing rules for increased clarity regarding what constitutes a financial institution within the meaning of that chapter.

Existing rules require an affidavit from only the transferee financial institution in a change of trustee for care funds or preneed trust funds transactions. Sections SPS 53.03 (1) (d), (2) (d). The proposed rules would also require an affidavit from the transferor financial institution as well. Sections CB 4.03 (1) (dm), (2) (dm). The transferor's affidavit must confirm that all deposits into the funds to be transferred were timely, and that there have been no withdrawals of the principal. The transferor's affidavit will assure that the requested change of trustee is not for purposes of hiding impropriety in the transferor institution's management of the funds. The cemetery board is authorized to impose the requirement for the transferor's affidavit under ss. 157.19 (d) and 440.905 (2). The assurance provided from the transferor's affidavit will significantly enhance the board's ability to oversee change-of-trustee transactions and the department's enforcement of the board's rules, both of which will result in better protection of the funds involved.

Finally, given the cemetery board's quarterly meeting schedule, a full-board determination of a change-of-trustee request within 60 days of its receipt, as required by current s. SPS 53.02 (4), may not be feasible. To facilitate timely determinations of such requests, proposed rule s. CB 4.02 (4) provides for determination by the board's designee if necessary.

Summary of, and comparison with, existing or proposed federal regulations

There are no existing or proposed federal regulations related to the regulatory areas of the proposed rules.

Comparison with rules in adjacent states

Illinois:

The Illinois statutes, called the Illinois Compiled Statutes (ILCS), charge the state's Department of Financial and Professional Regulation (DFPR) with governing cemeteries pursuant to the Cemetery Oversight Act. The DFPR's powers include the authority to promulgate rules for the administration and enforcement of that Act. Section 225 ILCS 411/5-25. Licensed cemetery authorities may accept any gift or payment for the care of the cemetery or a cemetery lot to establish a trust fund for the specified purpose. Section 225 ILCS 411/15-5 (a). The cemetery authority acts as trustee of amounts received until depositing them with a corporate fiduciary. Section 225 ILCS 411/15-5 (b). Under s. 225 ILCS 620/1-5.05, “corporate fiduciary" means a trust company, such as a bank or other financial institution, or an individual or entity that has obtained a certificate of authority under the Corporate Fiduciary Act to exercise trust powers.

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3173&ChapterID=24

The Illinois State Comptroller regulates pre-need contract salespersons, pre-need contracts, and cemetery care or pre-need trust funds under both the Illinois Funeral or Burial Funds Act, ch. 225 ILCS 45, and the Illinois Pre-Need Cemetery Sales Act, ch. 815 ILCS 390. A salesperson may change the trustee of pre-need trust funds upon no less than 30 days' prior notice to the Comptroller. Section 225 ILCS 45/2 (g). When a seller changes trustees, the trustee must provide written notice of the change to the Comptroller at least 28 days prior to the effective date of the change. Sections 225 ILCS 45/2 (g), 815 ILCS 390/16 (b).

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1302&ChapterID=24 http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2343&ChapterID=67

Neither the Illinois Comptroller's administrative rules, nor those of the DPFR specifically address changes in trustees of cemetery care or pre-need trust funds. Title 38, Part 610, Ill. Admin. Code.

http://www.ilga.gov/commission/jcar/admincode/038/03800600sections.htmlhttp://www.ilga.gov/commission/jcar/admincode/038/03800610sections.html, http://www.ilga.gov/commission/jcar/admincode/038/03800610sections.html, http://www.ilga.gov/commission/jcar/admincode/068/068parts.html

Iowa:

In Iowa, the commissioner of insurance regulates cemeteries and funeral merchandise and services under the Cemetery and Funeral Merchandise and Funeral Services Act and the Iowa Cemetery Act. Sections 523A.801, 523I.201, Iowa Code. The commissioner of insurance is an officer in the insurance division of Iowa's department of commerce. Section 505.1, Iowa Code. A seller of cemetery or funeral merchandise, or funeral services must deposit any moneys paid by the purchaser into a trust fund that the seller has previously established for such purposes. Section 523A.201.

Cemeteries may sell interment rights, merchandise related to the final disposition of human remains, or memorial or special care, and may or may not place moneys received from such sales in a trust fund. Section 523I.102 4., 20., 28., 47. Perpetual care cemeteries must maintain an irrevocable trust fund for the general care of a cemetery. The care fund trust must provide for the appointment of initial and successor trustees. Sections 523I.806 1., 523I.809 1., Iowa Code. A trustee for care funds may, but need not, be a financial institution. The cemetery may transfer care funds from one financial institution to another. Section 523I.810 1. a., 3., Iowa Code. The care fund's trustee may hold money or property designated for the special care of a particular interment space, or cemetery section or building as specified by the purchaser. Section 523I.804 4., Iowa Code.

http://search.legis.state.ia.us/nxt/gateway.dll?f=templates&fn=default.htmhttp://search.legis.state.ia.us/nxt/gateway.dll?f=templates&fn=default.htm, http://search.legis.state.ia.us/nxt/gateway.dll?f=templates&fn=default.htm

Iowa's administrative rules regulating cemeteries are located at ch. 191—18, Iowa Admin. Code. Section 191-18.1. (2) of the code reiterates the provisions regarding a care funds trust stated in ss. 523I.806-.810, Iowa Code. Rules associated with the Cemetery and Funeral Merchandise and Funeral Services Act found at chs. 191—101-102, Iowa Administrative Code.

http://search.legis.state.ia.us/nxt/gateway.dll/ar/iac?f=templates&fn=default.htmhttp://search.legis.state.ia.us/nxt/gateway.dll?f=templates&fn=default.htm, http://search.legis.state.ia.us/nxt/gateway.dll?f=templates&fn=default.htm

Michigan:

In Michigan, ownership and operation of cemeteries is regulated by the Cemetery Commissioner, an officer in the Department of Licensing and Regulatory Affairs (LARA), formerly the Department of Labor and Economic Growth. Michigan Compiled Laws (MCL) 456.522, s. 2. (k). Cemeteries are required to establish and maintain an irrevocable endowment and perpetual care trust fund with one or more financial institutions that will serve as trustee for the portion of the fund allocated to them. A cemetery may remove and replace a trustee at any time, subject to the consent of the commissioner and to the trustee agreement. MCL 456.536 s. 16 (4).

LARA administers the Prepaid Funeral and Cemetery Sales Act, under which it registers sellers and providers of funeral or cemetery services or merchandise sold pursuant to prepaid contracts, and regulates such contracts. MCL 328.213 s. 3. (o), 328.215 s. 5. (d), 328.216. All funds received pursuant to prepaid contracts must be held in escrow by an escrow agent for the benefit of the contract beneficiary. MCL 328.222 s. 12. (1). The statutes specify with particularity, based on whether the contract price is guaranteed or non-guaranteed, who or what entity may serve as the escrow agent: if non-guaranteed, either the contract seller or provider, or another of the seller's or provider' choice; if either guaranteed or non-guaranteed, a depository, a trust company, a non-profit corporation or association of at least 250 funeral establishments, or a non-profit of at least 30 cemeteries; if guaranteed and includes funeral services, selected by the provider of those services; if guaranteed and no funeral services, selected by any provider that is a party to the contract. Contract sellers and providers may not serve as the escrow agent for guaranteed price contracts. MCL 328.222 s. 12. (4) (b), (5). Providers and escrow agents may change the escrow depository at any time and with or without cause, without the approval of any other party. The contract buyer must be notified of a change of depository or escrow agent. MCL 328.224 s.14. (3).

http://legislature.mi.gov/doc.aspx?mcl-Act-255-of-1986

The cemetery commissioner's administrative rules are codified at R 456.101-.196, Mich. Admin. Code. These rules contain provisions related to endowed care funds, but they do not discuss changes of trustees for such funds.

http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Admin_Num=45600101&Dpt=LG&RngHigh=

The administrative rules corresponding to the Michigan Prepaid Funeral and Cemetery Sales Act are found at R 339.11-.47, Mich. Admin. Code. Although various of the rules therein reference the escrow, deposit, and investment of moneys received for cemetery merchandise, none directly address changes in escrow agents.

http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Admin_Num=33900011&Dpt=&RngHigh=33923405

Minnesota:

Cemeteries in Minnesota may be either public or private. The ownership and operation of a public cemetery is governed by either a corporation or association formed for such purposes, and must provide for the appointment of at least three board members or trustees. Section 306.02, Minn. Stats. A cemetery association may establish a permanent fund for the general care, maintenance, and improvement of the cemetery. Section 306.31, Minn. Stats. The association must either appoint a board of trustees for the fund, consisting of not less than three and not greater than five resident landowners, or designate a trust company within the state. Section 306.32, Minn. Stats. Trustees are appointed for life except if a trust company, which may be replaced by a board of trustees or another trust company, as the association trustees see fit. Section 306.32, Minn. Stats.

https://www.revisor.mn.gov/statutes/?id=306&view=chapter&year=2011&keyword_type=all&keyword=cemetery&format=pdf

The total of all moneys paid pursuant to a contract for the preneed purchase of burial goods, or funeral or burial services must be held in trust with a Minnesota financial institution until performance of the terms of the contract upon the death of the trust's beneficiary. Unless otherwise specified by the purchaser, the trust must be revocable in its entirety. 149A.97, subd. 3., Minn. Stats. Such trusts must be carried in a separate account with the depositor funeral provider and the purchaser named as trustees. The purchaser may at any time prior to the death of the beneficiary designate another trustee. 149A.97, subd. 3a. (8), subd. 4. Minn. Stats.

https://www.revisor.mn.gov/statutes/?id=149A&view=chapter&year=2011&keyword_type=all&keyword=cemetery&format=pdf

Minnesota has no administrative rules related to cemetery care other than those regulating the construction of new care facilities, 4660.1200, Minn. Admin. Rules; charitable, religious, or educational organizations, including their tax exempt status, 8130.6200, Minn. Admin. Rules; and caskets, burial vaults, and urns for cremains used for human burial, 8130.6300, Minn. Admin. Rules. No rules address trust funds or changes of trustees thereof.

https://www.revisor.mn.gov/rules/?id=4660.1200&keyword_type=all&keyword=cemetery+carehttps://www.revisor.mn.gov/rules/?id=8130.6200&keyword_type=all&keyword=cemetery, https://www.revisor.mn.gov/rules/?id=8130.6200&keyword_type=all&keyword=cemetery,

https://www.revisor.mn.gov/rules/?id=8130.6300&keyword_type=all&keyword=cemetery

A search of the Minnesota Administrative Rules for regulation of preneed or prepaid merchandise or services produced no results. 8130.6200
https://www.revisor.mn.gov/search/doc_result.php?search=all&keyword_type=all&keyword=pre-need+preneed+prepaid+&stat_year1=2011&stat_year2=2011&stat_chapter=&laws_session1=87&laws_session2=87&laws_chapter=&laws_display=art&rule=1&rule_year1=2010&rule_year2=2010&rule_chapter=&rule_agency%5B%5D=&court_year1=2010&court_year2=2010&court_type%5B%5D=&submit_keyword=GO

Summary of factual data and analytical methodologies

The comparison information with the rules in adjacent states was obtained by thorough review of their laws and rules, and from direct contact with those states by e-mail or telephone.

The proposed transfer of authority for regulation of warehouses that store cemetery pre-need merchandise, changing trustees of care or pre-need trust funds, and alternative care funds investments was prompted by legislative action that became effective on April 9, 2008. The purpose of these rules is to bring the existing rules into conformity with the enabling statutes, and thus, neither collection of factual data, nor the use of analytical methodologies were necessary.

Implementation of requirements for ensuring the accuracy, integrity, objectivity, and consistency of data used in rule preparation and related analysis

No use of factual data or analytical methodologies was required in the preparation of this proposal or its related analysis.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

Pursuant to s. IV, 3. a., EO # 50, the rules proposed herein were posted on both the state's and the department's administrative rules websites for 14 days to solicit comments regarding the rule's potential economic impact on businesses, business sectors, professional associations, local government units, or potentially interested parties. In addition, e-mail solicitations were sent to several potentially interested parties. No responses to any of the solicitations were received.

The department concludes that the proposed rules will have no economic impact on small businesses. This proposal tracks legislation that became effective on April 9, 2008, approximately four years ago. The statutory change has thus been in place long enough to produce the resulting economic or fiscal impact experienced by private businesses or public entities, if any, for such impact to have been fully absorbed by those entities as a part of routine operations.

Anticipated costs incurred by the private sector

The department finds that these proposed rules will have no significant fiscal effect on the private sector.

Fiscal Estimate

Implementation of these rules will cause a minor increase in the department's credentialing division costs, which the department is able to absorb.

Initial Regulatory Flexibility Analysis or Summary

These proposed rules amend existing administrative code only to reflect the transfer of regulatory authority, the 2011 department name-change, and other minor information updates such as addresses referenced, etc. The individuals and entities governed by the existing rules include: cemeteries; funeral homes; sellers of pre-need cemetery or funeral merchandise or services; and the financial institutions serving as a trust fund depository and trustee. Because the substance of the existing rules does not change under this proposal, such individuals and entities will not be affected by the promulgation of the proposed amendments.

Change-of-trustee transactions require knowledge of banking practices and record-keeping. Such knowledge is essentially clerical in nature. A sworn, statement by a financial institution officer regarding the required transaction information must be notarized. These functions are a routine aspect of a financial institution's operations, and will not change by this proposal.

Effect on Small Business

These proposed rules will not have a significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1), Stats.

The department's Regulatory Review Coordinator may be contacted by email at [e-mail], or by phone at [phone].

Agency Contact

Kris Anderson, Paralegal, Department of Safety and Professional Services, Division of Board Services, 1400 E. Washington Ave., Rm. 117, P.O. Box 8935, Madison, Wisconsin 53708; telephone [phone]; email at [e-mail].

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
CB 3-5 “Authority transfer," includes all rules in the former Chs. RL 52-54
Subject
Warehouses storing cemetery pre-need merchandise, changing trustees of care or pre-need trust funds, and alternative care funds investments.
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
GPR FED X PRO PRS SEG SEG-S			20.165 (1) (g)
Fiscal Effect of Implementing the Rule
No Fiscal Effect Indeterminate	Increase Existing Revenues Decrease Existing Revenues		X Increase Costs X Could Absorb Within Agency's Budget Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy Local Government Units		X Specific Businesses/Sectors Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? Yes X No
Policy Problem Addressed by the Rule
2007 Wisconsin Act 174, amending chs. 157 and 440, Stats., effective on April 9, 2008, transferred authority previously held by the former department of regulation and licensing, now the department of safety and professional services, to the cemetery board. The authority transferred regards regulation of warehouses storing cemetery pre-need merchandise, changes in trustees of care or pre-need trust funds, and alternative care funds investments. The cemetery board's rule-making proposal will implement the authority transfer, which will bring the regulations into compliance with their enabling statutes.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
These proposed rules implement legislation that has been in effect for several years. If there was any economic or fiscal impact on private businesses or public entities based on the transfer of authority for regulating the relevant activities, which is highly unlikely, it has long since been absorbed by such businesses and entities as a part of routine operations. The rules promulgated by this proposal will therefore have no current economic or fiscal impact on any of those entities.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The existing administrative rules regarding regulation of warehouses storing cemetery pre-need merchandise, changes in trustees of care or pre-need trust funds, and alternative care funds investments reflect the pre-Act 174 enabling statutes. Because the authority for administering such regulation, currently set forth in chs. SPS 52-54, no longer rests with the department, they are not consistent with the statutes. Chapters SPS 52-54 must therefore be renamed and renumbered; there is no alternative to making the proposed changes.
Long Range Implications of Implementing the Rule
The primary implication of the proposed rules, whether short- or long-term, is that they will correctly indicate the cemetery board, and not the department, as the authority for regulating warehouses storing cemetery pre-need merchandise, changes in trustees of care or pre-need trust funds, and alternative care funds investments. Indicating the correct authority will result in less confusion for those governed by the rules, as well as for department personnel charged with carrying out cemetery board decisions based on thereon.
Compare With Approaches Being Used by Federal Government
There are no existing or proposed federal regulations related to the regulatory areas of the proposed rules.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Illinois: The Illinois statutes, called the Illinois Compiled Statutes (ILCS), charge the state's Department of Financial and Professional Regulation (DFPR) with governing cemeteries pursuant to the Cemetery Oversight Act. The DFPR's powers include the authority to promulgate rules for the administration and enforcement of that Act. Section 225 ILCS 411/5-25. Licensed cemetery authorities may accept any gift or payment for the care of the cemetery or a cemetery lot to establish a trust fund for the specified purpose. Section 225 ILCS 411/15-5 (a). The cemetery authority acts as trustee of amounts received until depositing them with a corporate fiduciary. Section 225 ILCS 411/15-5 (b). Under s. 225 ILCS 620/1-5.05, “corporate fiduciary" means a trust company, such as a bank or other financial institution, or an individual or entity that has obtained a certificate of authority under the Corporate Fiduciary Act to exercise trust powers. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3173&ChapterID=24 The Illinois State Comptroller regulates pre-need contract salespersons, pre-need contracts, and cemetery care or pre-need trust funds under both the Illinois Funeral or Burial Funds Act, ch. 225 ILCS 45, and the Illinois Pre-Need Cemetery Sales Act, ch. 815 ILCS 390. A salesperson may change the trustee of pre-need trust funds upon no less than 30 days' prior notice to the Comptroller. Section 225 ILCS 45/2 (g). When a seller changes trustees, the trustee must provide written notice of the change to the Comptroller at least 28 days prior to the effective date of the change. Sections 225 ILCS 45/2 (g), 815 ILCS 390/16 (b). http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1302&ChapterID=24 http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2343&ChapterID=67 Neither the Illinois Comptroller's administrative rules, nor those of the DPFR specifically address changes in trustees of cemetery care or pre-need trust funds. Title 38, Part 610, Ill. Admin. Code. http://www.ilga.gov/commission/jcar/admincode/038/03800600sections.html http://www.ilga.gov/commission/jcar/admincode/038/03800610sections.html, http://www.ilga.gov/commission/jcar/admincode/068/068parts.html Iowa: In Iowa, the commissioner of insurance regulates cemeteries and funeral merchandise and services under the Funeral Merchandise and Funeral Merchandise Act and the Iowa Cemetery Act. Sections 523A.801, 523I.201, Iowa Code. The commissioner of insurance is an officer in the insurance division of Iowa's department of commerce. Section 505.1, Iowa Code. A seller of cemetery or funeral merchandise, or funeral services must deposit any moneys paid by the purchaser into a trust fund that the seller has previously established for such purposes. Section 523A.201. Cemeteries may sell interment rights, merchandise related to the final disposition of human remains, or memorial or special care, and may or may not place moneys received from such sales in a trust fund. Section 523I.102 4., 20., 28., 47. Perpetual care cemeteries must maintain an irrevocable trust fund for the general care of a cemetery. The care fund trust must provide for the appointment of initial and successor trustees. Sections 523I.806 1., 523I.809 1., Iowa Code. A trustee for care funds may, but need not, be a financial institution. The cemetery may transfer care funds from one financial institution to another. Section 523I.810 1. a., 3., Iowa Code. The care fund's trustee may hold money or property designated for the special care of a particular interment space, or cemetery section or building as specified by the purchaser. Section 523I.804 4., Iowa Code. http://search.legis.state.ia.us/nxt/gateway.dll?f=templates&fn=default.htm Iowa's administrative rules regulating cemeteries are located at ch. 191—18, Iowa Admin. Code. Section 191-18.1. (2) of the code reiterates the provisions regarding a care funds trusted stated in ss. 523I.806-.810, Iowa Code. Rules associated with the Cemetery and Funeral Merchandise and Funeral Services Act found at chs. 191—101-102, Iowa Administrative Code. http://search.legis.state.ia.us/nxt/gateway.dll/ar/iac?f=templates&fn=default.htm, http://search.legis.state.ia.us/nxt/gateway.dll?f=templates&fn=default.htm
Michigan: In Michigan, ownership and operation of cemeteries is regulated by the Cemetery Commissioner, an officer in the Department of Licensing and Regulatory Affairs (LARA), formerly the Department of Labor and Economic Growth. Michigan Compiled Laws (MCL) 456.522, s. 2. (k). Cemeteries are required to establish and maintain an irrevocable endowment and perpetual care trust fund with one or more financial institution that will serve as trustee for the portion of the fund allocated to it. A cemetery may remove and replace a trustee at any time, subject to the consent of the commissioner and to the trustee agreement. MCL 456.536 s. 16 (4). http://legislature.mi.gov/doc.aspx?mcl-Act-251-of-1968 LARA administers the Prepaid Funeral and Cemetery Sales Act, under which it registers sellers and providers of funeral or cemetery services or merchandise sold pursuant to prepaid contracts, and regulates such contracts. MCL 328.213 s. 3. (o), 328.215 s. 5. (d), 328.216. All funds received pursuant to prepaid contracts must be held in escrow by an escrow agent for the benefit of the contract beneficiary. MCL 328.222 s. 12. (1). The statutes specify with particularity, based on whether the contract price is guaranteed or non-guaranteed, who or what entity may serve as the escrow agent: if non-guaranteed, either the contract seller or provider, or another of the seller's or provider' choice; if either guaranteed or non-guaranteed, a depository, a trust company, a non-profit corporation or association of at least 250 funeral establishments, or a non-profit of at least 30 cemeteries; if guaranteed and includes funeral services, selected by the provider of those services; if guaranteed and no funeral services, selected by any provider that is a party to the contract. Contract sellers and providers may not serve as the escrow agent for guaranteed price contracts. MCL 328.222 s. 12. (4) (b), (5). Providers and escrow agents may change the escrow depository at any time and with or without cause, without the approval of any other party. The contract buyer must be notified of a change of depository or escrow agent. MCL 328.224 s.14. (3). http://legislature.mi.gov/doc.aspx?mcl-Act-255-of-1986 The cemetery commissioner's administrative rules are codified at R 456.101-.196, Mich. Admin. Code. These rules contain provisions related to endowed care funds, but they do not discuss changes of trustees for such funds. http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Admin_Num=45600101&Dpt=LG&RngHigh= The administrative rules corresponding to the Michigan Prepaid Funeral and Cemetery Sales Act are found at R 339.11-.47, Mich. Admin. Code. Although various of the rules therein reference the escrow, deposit, and investment of moneys received for cemetery merchandise, none directly address changes in escrow agents. http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Admin_Num=33900011&Dpt=&RngHigh=33923405 Minnesota: Cemeteries in Minnesota may be either public or private. The ownership and operation of a public cemetery is governed by either a corporation or association formed for such purposes, and must provide for the appointment of at least three board members or trustees. Section 306.02, Minn. Stats. A cemetery association may establish a permanent fund for the general care, maintenance, and improvement of the cemetery. Section 306.31, Minn. Stats. The association must either appoint a board of trustees for the fund, consisting of not less than three and not greater than five resident landowners, or designate a trust company within the state. Section 306.32, Minn. Stats. Trustees are appointed for life except if a trust company, which may be replaced by a board of trustees or another trust company, as the association trustees see fit. Section 306.32, Minn. Stats. https://www.revisor.mn.gov/statutes/?id=306&view=chapter&year=2011&keyword_type=all&keyword=cemetery&format=pdf The total of all moneys paid pursuant to a contract for the preneed purchase of burial goods, or funeral or burial services must be held in trust with a Minnesota financial institution until performance of the terms of the contract upon the death of the trust's beneficiary. Unless otherwise specified by the purchaser, the trust must be revocable in its entirety. 149A.97, subd. 3., Minn. Stats. Such trusts must be carried in a separate account for the depositor funeral provider and the purchaser are the named trustees. The purchaser may at any time prior the death of the beneficiary designate another trustee. 149A.97, subd. 3a. (8), subd. 4. Minn. Stats. https://www.revisor.mn.gov/statutes/?id=149A&view=chapter&year=2011&keyword_type=all&keyword=cemetery&format=pdf Minnesota has no administrative rules related to cemetery care other than those regulating the construction of new care facilities, 4660.1200, Minn. Admin. Rules; charitable, religious, or educational organizations, including their tax exempt status, 8130.6200, Minn. Admin. Rules; and caskets, burial vaults, and urns for cremains used for human burial, 8130.6300, Minn. Admin. Rules. No rules address trust funds or changes of trustees thereof. https://www.revisor.mn.gov/rules/?id=4660.1200&keyword_type=all&keyword=cemetery+care https://www.revisor.mn.gov/rules/?id=8130.6200&keyword_type=all&keyword=cemetery, https://www.revisor.mn.gov/rules/?id=8130.6300&keyword_type=all&keyword=cemetery A search of the Minnesota Administrative Rules for regulation of preneed or prepaid merchandise or services produced no results. 8130.6200 https://www.revisor.mn.gov/search/doc_result.php?search=all&keyword_type=all&keyword=pre-need+preneed+prepaid+&stat_year1=2011&stat_year2=2011&stat_chapter=&laws_session1=87&laws_session2=87&laws_chapter=&laws_display=art&rule=1&rule_year1=2010&rule_year2=2010&rule_chapter=&rule_agency%5B%5D=&court_year1=2010&court_year2=2010&court_type%5B%5D=&submit_keyword=GO

Notice of Alternative Hearing Date

Safety and Professional Services

Controlled Substances Board

CR 12-010

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Controlled Substances Board in sections 227.11 (2) and 961.335 (8), Wis. Stats., and interpreting section 961.335, Wis. Stats., the Controlled Substances Board will hold a public hearing at the time and place indicated below to consider an order to promulgate Chapter CSB 3, Wis. Admin. Code. The proposed rules relate to the requirements and procedures for granting special use authorizations.

Hearing Information

Date:   Monday, March 12, 2012

Time:   10:30 A.M.

Location:   1400 East Washington Avenue
  Room 121C
  Madison, WI 53703

PLEASE BE ADVISED that the public hearing announced in this notice will take place only upon cancellation of the public hearing that is currently scheduled and noticed for February 27, 2012 at 1:00 p.m. If the February 27, 2012 public hearing proceeds as scheduled, the March 13, 2012 public hearing date is not necessary and will be canceled. The cancellation of the February 27, 2012 public hearing will not be known until the Controlled Substances Board convenes that day.

Appearances at the Hearing and Submittal of Written Comments

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions, and argument in writing as well. Facts, opinions, and argument may also be submitted in writing without a personal appearance by mail addressed to the Department of Safety and Professional Services, Division of Board Services, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received at or before the public hearing to be included in the record of rule-making proceedings.

Copies of this proposed rule are available upon request to Kris Anderson, Paralegal, Department of Regulation and Licensing, Division of Board Services, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708, or by email at [e-mail].

For the Analysis and Fiscal Estimate and Economic Impact Analysis prepared by the Department of Safety and Professional Services see the Notice of Hearing in Register No. 674, February 14, 2012.

Notice of Hearing

Transportation

CR 12-019

NOTICE IS HEREBY GIVEN that pursuant to sections 85.16 (1), 345.11 (4) and 227.11, Stats., interpreting sections 85.16 (1) and 345.11 (4), Stats., the Department of Transportation will hold a public hearing to consider the amendment of Chapter Trans 114, Wisconsin Administrative Code, relating to the uniform traffic citation.

Hearing Information

Date:   Friday, March 16, 2012

Time:   2:00 P.M.

Location:   Hill Farms Office Building
  4802 Sheboygan Avenue
  Room 144B
  Madison, WI 53705

This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call Glenn Green at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing. Accommodations such as interpreters, English translators, or materials in alternative format will, to the fullest extent possible, be made available upon a request from a person with a disability to accommodate your needs.

Agency Contact Person and Place Where Comments are to be Submitted and Deadline for Submission

The public record on this proposed rule making will be held open until close of business the day of the hearing to permit the submission of comments in lieu of public hearing testimony or comments supplementing testimony offered at the hearing. Any such comments should be submitted Darlene Schwartz, Department of Transportation, Citations and Withdrawals Section, Room 301, P. O. Box 7919, Madison, WI 53707-7919. You may also contact Ms. Schwartz by phone at [phone] or via e-mail: [e-mail] for copies of the proposed rule.

To view the proposed amendments to the rule, view the current rule, and submit written comments via e-mail/internet, you may visit the following website: http://www.dot.wisconsin.gov/library/research/law/rulenotices.htm.

Copies of Proposed Rule

A copy of the rule may be obtained upon request from Glenn Green, Department of Transportation, Citations and Withdrawals Section, Room 301, P. O. Box 7919, Madison, WI 53707-7919. You may also contact Mr. Green by phone at [phone] or via e-mail: [e-mail]. Copies will also be available at the hearing.

Place Where Comments are to be Submitted and Deadline for Submissions

Analysis Prepared by the Department of Employee Trust Funds

Statutes interpreted

Sections 85.16 (1) and 345.11 (4), Stats.

Statutory authority

Sections 85.16 (1) and 345.11 (4), Stats.

Explanation of agency authority

Section 345.11 (5), Stats., requires DOT to promulgate the Uniform Traffic Citation used by traffic officers across the state and any regulations related to it as an administrative rule:

  …the secretary shall under s. 85.16 (1) promulgate the form or automated format as an administrative rule, and with the advice of the council shall make any other rules as are necessary for the implementation and operation of this section.

Related statute or rule

Section 345.11, Stats.

Plain language analysis

This proposed rule amends Figures 1, 4, 5, and 6 to ch. Trans 114, relating to the Uniform Traffic Citation. During the last audit of our Commercial Driver Licensing program in 2007, the reviewers indicated “The boxes on the uniform citation to identify CMV and hazmat involvement are not consistently and appropriately used by law enforcement for the DMV to identify and impose the appropriate disqualification action." DMV proposes to change the Uniform Traffic Citation form and insert yes/no boxes next to the problem items in the hope that the change will improve consistent and appropriate use. Development of this rule did not involve the gathering, analysis, or use of data. Therefore, Wis. Stat. s. 227.14(2m) is inapplicable to this rulemaking.

The Uniform Traffic Citation Council has endorsed these changes. The changes to the citation involve no issue of policy; they are made to improve the reliability of the data provided by officers.

The rule also proposes to amend the existing rule to clarify that the automated citation must be produced in the format already prescribed by the Department in Figure 6 of the rule. The document may not be reproduced on small paper leaving the information too small to read.

The title to s. Trans 114.03 would be amended by this proposed rule to clarify that the provisions of that section apply to prototype forms used for the testing purposes described in that rule. The rule text is unchanged; the title is simply corrected to better describe the rule's content. The new name will distinguish s. Trans 114.03 from s. Trans 114.07, which applies to the use of the standard uniform traffic citation form.

Finally, the proposal to amend the regulation to explicitly require the date and time of appearance to be shown on the citation is simply codifying procedures that should already be mandated by courts processing citations. A person who is issued a citation should be notified of the time and place he or she is required to appear in court or pay the ticket as part of that process. All persons have a fundamental due process right to notice of the time and place their case will be heard. Unfortunately, the Uniform Traffic Citation Council and Department have become aware that some police agencies do not specify the return date on citations. This proposed amendment is intended to end that practice.

Summary of, and preliminary comparison with, existing or proposed federal regulation

The purpose of making changes to the citation form related to CMV use or the transportation of hazardous materials is to improve compliance with federal CDL laws and regulations. Federal law requires Wisconsin to:

•   Notify the licensing jurisdiction within 10 days if one of its drivers is convicted of a CDL offense in Wisconsin.

•   Post convictions on Wisconsin driving records within 10 days of the conviction.

Section 345.48(1m), Stats., requires courts to report convictions to DMV within 5 working days. By having consistent information regarding CMV use or hazardous materials transportation, as well as a consistent automated citation format, DMV should be more consistent in processing reported convictions within the 10-day federal time limit.

Comparison with rules in the following states

Neighboring states have a requirement similar to Wisconsin's that a uniform citation be used for traffic offenses.

  Michigan: Michigan: Section 257.727c, Michigan Vehicle Code Act 300

  (1) As used in this act, “citation" means a complaint or notice upon which a police officer shall record an occurrence involving 1 or more vehicle law violations by the person cited. Each citation shall be numbered consecutively, be in a form as determined by the secretary of state, the attorney general, the state court administrator, and the director of the department of state police.

  Minnesota: 2008 Minnesota Statutes 169.99 Uniform Traffic Ticket

  Subdivision 1. Form. (a) Except as provided in subdivision 3, there shall be a uniform ticket issued throughout the state by the police and peace officers or by any other person for violations of this chapter and ordinances in conformity thereto. Such uniform traffic ticket shall be in the form and have the effect of a summons and complaint. Except as provided in paragraph (b), the uniform ticket shall state that if the defendant fails to appear in court in response to the ticket, an arrest warrant may be issued. The uniform traffic ticket shall consist of four parts, on paper sensitized so that copies may be made without the use of carbon paper, as follows:

  Illinois: Joint Committee on Administrative Title 92, Chapter 1, Part 450

  The complaint shall be in the form provided by the Illinois Uniform Citation and Complaint form, and shall contain…

  Iowa: Chapter 805.6 Uniform Citation and Complaint

  1.a.(1) The commissioner of public safety, the director of transportation, and the director of natural resources, acting jointly, shall adopt a uniform, combined citation and complaint which shall be used for charging all traffic violations in Iowa under state law or local regulation.

Summary of factual data and analytical methodologies used and how the related findings support the regulatory approach chosen

The uniform traffic citation is created with the advice of the Council on Uniformity of Traffic Citations and Complaints. That group consists of representatives of various groups involved in the enforcement and adjudication of traffic regulations.

Analysis and supporting documentation used to determine effect on small businesses

Traffic citations are generally written to individuals. The form used by law enforcement officers to write citations does not affect business in the state of Wisconsin. There is no documentation on this point and the analysis is limited to observing that there is no possible relationship between the form used for citations in traffic cases and small business development in Wisconsin.

Effect on Small Business

This rule has no effect on small business. The Department's Regulatory Review Coordinator may be contacted by e-mail at [e-mail], or by calling [phone].

Fiscal Effect

The Department estimates that there will be no fiscal impact on the state or on the liabilities or revenues of any county, city, village, town, school district, vocational, technical and adult education district, sewerage district, or federally-recognized tribes or bands. Existing s. Trans 114.07 permits law enforcement agencies to exhaust the existing stock of forms before buying new forms. This mitigates any fiscal impact on local governments.

Anticipated costs incurred by private sector

The department anticipates there will be no fiscal impact on private sector revenues or liabilities.

Agency Contact Person and Place Where Comments are to be Submitted and Deadline for Submission

Darlene Schwartz, Department of Transportation, Citations and Withdrawals Section, Room 301, P. O. Box 7919, Madison, WI 53707-7919. You may also contact Ms. Schwartz by phone at [phone] or via e-mail: [e-mail] for copies of the proposed rule.

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
Chapter Trans 114
Subject
Uniform Traffic Citations
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
GPR FED PRO PRS SEG SEG-S
Fiscal Effect of Implementing the Rule
X No Fiscal Effect Indeterminate	Increase Existing Revenues Decrease Existing Revenues		Increase Costs Could Absorb Within Agency's Budget Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? Yes X No
Policy Problem Addressed by the Rule
This rule-making implements changes to the format of the Uniform Traffic Citation to comply with federal requirements related to CDLs and to improve efficiency.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
None.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The Uniform Traffic Citation form changes will improve Wisconsin compliance with federal CDL reporting requirements.
Long Range Implications of Implementing the Rule
The Uniform Traffic Citation form will be promulgated in the manner required by law.
Compare With Approaches Being Used by Federal Government
N/A
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Neighboring states also require uniformity in their traffic citation formats.
Name and Phone Number of Contact Person
Attorney John Sobotik 608-266-8810