Scope Statements
Agriculture, Trade and Consumer Protection
This statement of scope was approved by the Governor on September 20, 2013.
Rule No.
Relating to
Mobile air conditioners, reclaiming or recycling refrigerant.
Rule Type
Permanent and Emergency.
1. Description of the Objective of the Rule
This proposed rule and emergency rule would modify current trade and consumer protection rules related to mobile air conditioners. Currently, ch.
ATCP 136, Wis. Adm. Code., requires businesses that install, repair, or service mobile air conditioners to pay an annual registration fee and obtain an annual registration certificate from the department. The rule also requires businesses to register their mobile air service technicians, and for those technicians to successfully complete a department-approved training course or satisfy other training requirements.
DATCP proposes to eliminate the registration fee and streamline the registration and training requirements currently required under this rule. These modifications will harmonize DATCP's rule with federal requirements and reduce overall regulatory burdens by eliminating duplicative training and registration requirements. The Department will also remove references to obsolete Department of Safety and Professional Services (DSPS) licensing requirements and make other minor modifications needed to ensure uniformity between the statute and rule. The proposed emergency rule would enable the fee reductions to take effect for the 2014 licensing year, which begins March 1, 2014.
2. 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
History and background
This rule, along with its enabling statute s.
100.45, Wis. Stats., regulates the sale and distribution of refrigerants used in motor vehicle air conditioners and trailer refrigeration equipment. It also requires businesses (such as automobile repair shops) and technicians who service this equipment to be registered with DATCP. Technicians must also complete a training course or satisfy other training requirements. In 2012, 3,122 businesses holding 3,602 licenses (160 businesses held more than one location license) and about 11,000 technicians registered with the department.
The 1989 enabling statute required the department to write rules to regulate the use of ozone-depleting refrigerants. DATCP promulgated the initial rule in 1990 and expanded the rule in 1995 to include registration requirements for technicians and used refrigerant brokers, control the sale and distribution of used refrigerant, and establish purity standards for reclaimed or recycled refrigerants. In 2000, the department modified the rule again to increase the registration fee for businesses engaged in repairing and servicing mobile air conditioners and trailer refrigeration equipment, eliminate references to “used refrigerant broker," and regulate the use of substitute refrigerants. Technical changes to the rule were made in 2009 and also are currently being promulgated. The most recent technical rule changes will align the rule with 2011 statutory changes repealing the ban on selling containers holding less than 15 pounds of refrigerant (“small can ban").
As a result of the 2011 statutory changes, Wisconsin's regulations are now consistent with EPA requirements and the EPA-approved training program should meet Wisconsin's training needs.
In 2013, the legislature repealed requirements that refrigerant technicians be certified by DSPS. These former licensing requirements are housed in s.
SPS 305.72 and referenced in ch.
ATCP 136. This rulemaking will modify the rule to remove references to those requirements.
Nature of the emergency
An emergency rule is necessary because the registration fee and training requirements are unnecessary expenses and regulations that affect the welfare of business and industry. Permanent rules cannot be adopted in time to eliminate the fee and training requirements for the 2014 registration year. The emergency and permanent rules will have similar provisions.
Proposed policies
DATCP proposes to streamline the annual registration requirements and eliminate the annual registration fee for operators of mobile air conditioner repair or service businesses. In addition, DATCP proposes to designate the technician training course approved by the EPA under
40 CFR 82.40 as a department-approved course. DATCP also proposes to modify the rule to removed outdated references and make any other minor revisions that may be necessary to harmonize the statute and rule. The proposed emergency rule would allow these changes to take effect for the 2014 licensing year.
Policy alternatives
The department could maintain the existing registration requirements and fees for operators of mobile air conditioner repair and service businesses. Alternatively, the department could reduce the annual registration fee, but not eliminate it. In addition, the department could continue to require additional Wisconsin-specific training for technicians. The department also could skip the emergency rule, which would keep existing fees and training requirements in effect until the permanent rule is promulgated.
3. Statutory Authority for the Rule (Including the Statutory Citation and Language)
93.07 Department duties. It shall be the duty of the department:
(1) Regulations. To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of chs.
93 to
100, which regulations shall have the force of law.
100.45 Mobile air conditioners
(5) Department duties. The department shall do all of the following:
(a) Promulgate rules for the administration of this section including establishing all of the following:
1. A standard of purity for recycled refrigerant from mobile air conditioners that is based on recognized national industry standards.
2. Qualifications, which may include training or certification requirements, for individuals who use approved refrigerant recycling equipment or approved refrigerant recovery equipment to ensure that those individuals use procedures for containment of ozone-depleting refrigerant.
3. Fees to cover the costs of administering this section.
4. Estimate of the Amount of Time that State Employees Will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
DATCP estimates that it will use approximately 0.25 FTE staff to develop this rule. That 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.
5. Description of all Entities that may be Impacted by the Rule
Approximately 3,600 mobile air conditioning repair and servicing businesses and 11,000 technicians will be impacted by the rule. The proposed streamlined registration requirements, reduced fees, and expanded training options will save both technicians and their employers time and money and have a positive financial impact on those businesses.
Wisconsin technical colleges may also be impacted by the rule. Currently, the technical colleges are the major provider of the DATCP-required technician training. If the EPA-approved course is automatically considered to be “department-approved," attendance at the technical colleges' training courses may decline. Technicians could still choose to attend training provided by the technical colleges if they and their employers find it value-added. Technical colleges may also become authorized to provide EPA-approved training.
6. Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
At the national level, the EPA requires technicians to be trained and certified by an EPA-approved organization. The training must cover specific content areas, and technicians must pass a test demonstrating competency to be certified. Under the current DATCP rule, the EPA-approved course does not automatically meet the DATCP training standards. Therefore, a technician seeking certification in Wisconsin—who has already successfully completed the EPA approved course—must also (in most circumstances) complete a DATCP-approved course. Under the proposed rule revision, a technician who completes the EPA-approved course would meet the DATCP training requirements.
7. Anticipated Economic Impact
DATCP expects the proposed rule and emergency rule to have a positive economic effect on mobile air conditioning businesses. By eliminating the registration fee, approximately 3,600 licensed locations will save $120 per registered location, or about $420,000 statewide. In addition, by removing the duplicative training requirement, technicians (or their employers) will only be required to pay for and attend one training course, saving an unknown amount of time and money.
8. Contact Person
Jennifer Heaton-Amrhein, Program and Planning Analyst, DATCP; Phone (608) 224-5164.
Natural Resources
Fish, Game, etc., Chs.
NR 1—
(DNR # ER-30-13 and ER-31-13E)
This statement of scope was approved by the Governor on September 20, 2013.
Rule No.
Relating to
Addition of the Blanding's turtle to the State's Protected Wild Animal List, possession exemptions for native amphibians and reptiles, and turtle seasons and limits.
Rule Type
Permanent and Emergency.
1. Finding/Nature of Emergency (Emergency Rule Only)
An emergency rule, pursuant to s.
227.24, Stats., is necessary to preserve the public welfare and interest in ensuring a sustainable population of Blanding's turtles. The Blanding's turtle is proposed for delisting from the State's Threatened Species list per administrative rule ER-27-11, which is expected to take effect as early as December 2013. Although the Blanding's turtle no longer meets the scientific criteria for listing, the Department feels that the population is nonetheless too vulnerable to survive the threat of harvest and collection, and believes emergency rules are needed to ensure a proper recovery before these activities are permitted.
All turtles not listed as threatened or endangered in ch.
NR 27 or as otherwise specified have a 135-day open season (July 15-November 30) during which members of the public may capture and possess up to 5 individuals [ss.
NR 19.275 (4),
21.13 (4), and
22.13 (4)] per day. Permanent rule-making to protect Blanding's turtles from this harvest will not go into effect until after the 2014 open season for turtles is already underway. An emergency rule is therefore necessary to prevent the harvest and possession of Blanding's turtles during the 2014 open season until the permanent rule goes into effect.
The anticipated impact of collection and harvest to Blanding's turtle conservation and recovery in the state necessitates putting the emergency rule into effect during the 2014 open season for turtles while the agency complies with the permanent rule-making procedures.
2. Detailed Description of the Objective of the Proposed Rule
The objective of this emergency and permanent rule is to protect Blanding's turtles from the threat of harvest and collection once they are removed from the Wisconsin Threatened species list. The Blanding's turtle is proposed for delisting from the Threatened list per administrative rule ER-27-11, which is expected to take effect as early as December 2013. As a result of that delisting, the Blanding's turtle is subject to turtle harvest regulations as all turtles not listed as threatened or endangered in ch.
NR 27 or otherwise specified have a 135-day open season (July 15–November 30) where the public may capture and possess up to 5 individuals [ss.
NR 19.275 (4),
21.13 (4), and
22.13 (4)].
Through the Endangered and Threatened species list revision process for administrative rule ER-27-11, the Blanding's turtle was recommended by the public for addition to the Protected Wild Animal list and associated rules to address the threat of collection to species recovery once delisting from the Threatened list takes effect. The Department received considerable public comment on the issue of collection and harvest and the intrinsic vulnerability of the Blanding's turtle given its population age structure.
The Blanding's turtle is a long-lived species that is slow to mature. Life spans may exceed 75 years and individuals may not reach sexual maturity for 14-25 years. Adult females are most at risk for collection because they are easier to locate, as they nest in open areas like fields and roadways, and may receive a higher price in the pet trade. Inherently, losses of adult females have a greater long-term impact on the population. It may be difficult for populations to recover from these losses.
Internationally, there is concern for this species. In 2013, the United States Fish and Wildlife Service proposed addition of the Blanding's turtle to The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) list because of the increasing trend in the pet trade internationally:
http://www.fws.gov/international/cites/cop16/blandings-turtle.html. The IUCN/SSC Tortoise and Freshwater Turtle Specialist Group identified the elimination of commercial collecting as an immediate conservation need for this species worldwide:
http://www.iucn-tftsg.org/emydoidea-blandingii-015/.
Since 1979, when the Blanding's turtle was added to the threatened list, there has not been a pet trade industry for this species in the state. Regionally, the Blanding's turtle is state protected in Illinois, Iowa, and Minnesota. In Michigan, Blanding's turtles cannot be taken or possessed except as authorized by the Director of the Department of Natural Resources.
Given the population-age structure of the species, the impact of collection may be severe enough to place the Blanding's turtle's long term survival in the state in jeopardy, causing the species to be considered for addition back to the state's endangered and threatened species list. The proposed rule changes will continue similar possession and collection limits that the Blanding's turtle receives on the State's Threatened list. As such, minimal controversy is anticipated.
The emergency and permanent rules both contemplate the following changes: add Blanding's turtle to the list of Wild Protected Animals (s.
NR 10.02); add Blanding's turtles to the Captive Wildlife — Reptile/Amphibian Possession Exemptions [s.
NR 16.12 (3) (b)]; and add Blanding's turtles to the turtle season/limits with a season/limit of none/zero on ss.
NR 19.275 (4),
21.13 (4), and
22.13 (4). Permanent rule-making procedures will not allow the establishment of these proposed rule changes before the start of the 2014 open season for turtles. The impact of collection and harvest to Blanding's turtle conservation necessitates putting the emergency rule into effect during the 2014 open season for turtles while the agency complies with the permanent rule making procedures.
The permanent rule only will also contemplate performing housekeeping on scientific and common names of several plant and animal species, Federal Protection Status on administrative rules ss.
NR 10.02,
16.12,
19.275,
21.13,
22.13, and ch.
NR 27, and other related rules listing native plant and animal species. Additional rule changes may be pursued which are reasonably related to those discussed here.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
The emergency and permanent rules both contemplate the following changes: add Blanding's turtle to the list of Wild Protected Animals [s.
NR 10.02]; add Blanding's turtles to the Captive Wildlife — Reptile and Amphibian Possession Exemptions [s.
NR 16.12 (3) (b)]; and add Blanding's turtles to the turtle season/limits with a season/limit of none/zero on ss.
NR 19.275 (4),
21.13 (4), and
22.13 (4).
The permanent rule only, will also contemplate performing housekeeping on scientific and common names, and Federal Protection Status on administrative rules 10.02, 16.12, 19.275, 21.13, 22.13, 27, and other related rules listing native plant and animal species.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Statutes that authorize the promulgation of these rules include: ss.
29.011,
29.014, and
29.039, Stats. These statutes establish management authority, provide that the title to wild animals is vested with the state, and provide the department with authority to maintain open and closed seasons and other regulations and programs to conserve game and nongame species. All rules promulgated under this authority are subject to review under ch.
227, Stats.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
160 hours.
6.List with Description of all Entities that may be Affected by the Proposed Rule
The proposed rule changes will continue similar possession and collection limits that the Blanding's turtle receives under the protections afforded to the species on Wisconsin's Threatened species list. The Blanding's turtle was added to the Threatened species list in 1979. As such, there has not been a market for its collection and possession since then.
No changes to the permitting process for researchers and rehabilitators are expected as part of this proposed rule change. As part of the administrative rule ER-27-11, researchers will need to apply for a Scientific Collectors Permit or Research License Authorization to collect or possess a Blanding's turtle instead of an Endangered and Threatened Species Permit.
The effect of this proposed rule will be minimal with few entities affected as collection and possession limits will not change. Interested parties may include individuals using turtles as bait or food, and the turtle pet/food trade.
7. Summary 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 that would be in conflict with this proposed action. In 2013, the United States Fish and Wildlife Service proposed addition of the Blanding's turtle to The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) list:
http://www.fws.gov/international/cites/cop16/blandings-turtle.html.
There are similar laws in other states. The Blanding's turtle is state protected in Illinois, Iowa, and Minnesota. In Michigan, Blanding's turtles shall not be taken or possessed except as authorized by the Director of the Department of Natural Resources.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to Have a Significant Economic Impact on Small Businesses)
The Department estimates minimal economic impact as there has not been a market for this species in Wisconsin since 1979, when it was added to the Threatened species list. However, in the absence of this proposed emergency and permanent rule, development of a trade for Blanding's turtles collected in Wisconsin is expected.
9. Anticipated Number, Month, and Locations of Public Hearings
The Department anticipates holding 1 public hearing in the month of March, 2014. The hearing location will be the DNR office in Madison with remote participation at the DNR offices in Green Bay, Eau Claire, and Wausau. The Department will hold these hearings in these locations to allow for greater participation across the state and to effectively use staff time and resources.
10. Contact Person
Natural Resources
Environmental Protection — Air Pollution Control,
Chs.
NR 400—
(DNR # AM-32-13)
This statement of scope was approved by the Governor on September 24, 2013.
Rule No.
Relating to
Reporting, monitoring, and record-keeping requirements for stationary source owners or operators and additional changes of a clarifying or clean-up nature.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A.
2. Detailed Description of the Objective of the Proposed Rule
The Department proposes to initiate an evaluation of reporting, monitoring, and record-keeping requirements that apply to owners and operators of stationary sources, as that term is defined in s.
285.01 (41), Stats., with the objective of identifying opportunities, and then promulgating rules, to simplify, reduce, and increase the efficiency of those requirements, while remaining consistent with all applicable requirements under the Clean Air Act. The Department, in part, is required to initiate this rulemaking effort under s.
285.17 (4), Stats.
The Department is also proposing rulemaking of a clarifying or clean-up nature in the identified chapters. The Department may propose changes where existing rule language has been found to be unclear or susceptible to unintended interpretation. Changes of a clean-up nature are periodically necessary, for example, to correct errors in internal administrative code or statutory references, or to update references as a result of changes to federal regulations or reference test methods.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
The proposed rulemaking will not affect existing policy or include any new policies. The Department did not prepare an analysis of policy alternatives since the proposed rulemaking is only intended to simplify, reduce, and increase the efficiency of certain requirements, or is of a clarifying or clean-up nature.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Sections
227.11 (2) (a) and
285.11 (1), Stats., provide general rulemaking authority to promulgate rules interpreting and implementing the provisions of ch.
285, Stats., which is enforced and administered by the Department. Section
285.11 (6), Stats., requires that the Department develop, and thereafter be responsible for the revision and implementation of, plans for the prevention, abatement, and control of air pollution in the state. Numerous chapters potentially affected by the proposed rulemaking have been submitted to the U.S. Environmental Protection Agency under the Clean Air Act and are part of these plans. These rules must conform to the Clean Air Act except as provided for in s.
285.11 (6), Stats. The Department does not believe these exceptions apply to the proposed rulemaking. Authority for rulemaking specific to reporting, monitoring, and recordkeeping is contained in s.
285.17, Stats. Section
285.17 (1) (a), Stats., establishes that the Department may by rule, after classifying air contaminant sources, require reporting for any of the classes. Similarly, s.
285.17 (2) (a), Stats., establishes that the Department may by rule require the owner or operator of an air contaminant source to monitor emissions or to monitor the ambient air in the vicinity of the source and to report the results of the monitoring to the Department. Section
285.17 (4), Stats., which became effective on July 2, 2013, and was created under
2013 Wisconsin Act 20, specifically directs the Department to evaluate reporting, monitoring, and record-keeping requirements imposed on owners or operators of stationary sources of air pollution that are required to have an operation permit under s.
285.60, Stats., but are not required to have an operation permit under the federal Clean Air Act. This statutory provision further directs the Department to promulgate rules to simplify, reduce, and increase the efficiency of these requirements.
5. Estimate of Amount of Time that State Employees will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
The Department anticipates that approximately 1,000 hours of state employee time will be needed to complete the promulgation process for this proposed rulemaking.
6. List with Description of all Entities that may be Affected by the Proposed Rule
Rule requirements for reporting, monitoring, and record-keeping are established based on a variety of factors including the pollutant involved and the amount being emitted, the units of the applicable emission limitation, whether emission control equipment is being used and the type of equipment, and the compliance demonstration method being used, to mention a few. Existing rules establish these requirements for a broad array of industrial source categories from small businesses involved in painting operations to major sources like paper mills and electric utilities. Any of these sources or source categories may potentially be affected by this proposed rulemaking.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
Many of the Department's air pollution control rules, including those for reporting, monitoring, and record-keeping, are based on existing U.S. Environmental Protection Agency regulations or guidance or are required as part of Wisconsin's state implementation plan under the Clean Air Act. After an evaluation of reporting, monitoring, and record-keeping requirements has been completed, the Department will be able to identify those specific changes to be pursued to simplify, reduce, and increase the efficiency of these requirements. At that time, as part of the preparation of any proposed rules, the Department is required under s.
227.14 (2) (a) 3., Stats., to, and will be in a better position to, conduct this same comparison to relevant federal regulations. Any changes made under this proposed rulemaking will be consistent with all applicable requirements under the Clean Air Act.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)
The Department assumes that the overall economic impact of implementing the proposed rules will be minimal to moderate and that the proposed rules will not have a significant impact on small businesses. Given the objectives of the proposed rulemaking as detailed in Section 2, the economic impact is expected to be positive. That is, the simplification, reduction, and increased efficiency of reporting, monitoring, and record-keeping rules, and the general clarification and correction of other rules should lead to cost savings for all sources affected by these requirements.
9. Anticipated Number, Month, and Locations of Public Hearings
Considerable time and effort will be required to complete, as proposed in this rulemaking, an evaluation of reporting, monitoring, and record-keeping requirements and to develop and consider opportunities to simplify, reduce, and increase the efficiency of these requirements. The Department will work with interested stakeholders in the evaluation and any subsequent rulemaking effort.
During the evaluation and rulemaking process, the Department will develop a more complete picture of those potentially affected by this effort. This will allow the Department to plan for an appropriate number of hearings as well as locations and timing for hearings.
10. Contact Person
Kristin Hart
(608) 266-6876
Safety and Professional Services
This statement of scope was approved by the Governor on September 20, 2013.
Rule No.
Relating to
Real estate appraiser requirements.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A.
2. Detailed Description of the Objective of the Proposed Rule
The purpose of the proposed rule is to bring current administrative code regulating appraisers in line with the federal policy generated by the Appraiser Qualifications Board (AQB). In addition, pursuant to Executive Order #61, the department will take this opportunity to review chs.
SPS 80 to
87 in order to discover ways to reduce the regulatory impact on small business as long as it does not result in non-compliance with AQB standards.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
In December of 2011, the Appraiser Qualifications Board of the Appraisal Foundation adopted changes to the Real Property Appraiser Qualification Criteria. These changes will go into effect on January 1, 2015. This new criteria will impact education, experience, and examination requirements for licensed appraisers, certified general appraisers, and certified residential appraisers. As a result of the new federal policy, the department seeks to revise chs.
SPS 80 to
87. This is a federal mandate prompted by the Appraiser Qualifications Board. Since the AQB sets the minimum requirements for each state to implement and licensees must be AQB compliant in order to conduct federally related transactions, there is no alternative to rule making.
The Department will review chs.
SPS 80 to
87, pursuant to Executive Order #61, and look for ways to reduce the regulatory impact on small business in areas which do not impact AQB compliance.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
The Department of Safety and Professional Services has specific rule making authority pursuant to s.
227.11 (2) (a), Stats., which provides that, “each agency may promulgate rules interpreting the provisions of any statute enforced or administered by it
…" Section
444.03 (1), Stats., specifies, “the department may promulgate rules defining uniform procedures to be used by the department, [and] the real estate appraisers board..." In s.
458.03 (1) (b), Stats., the board may, “promulgate rules establishing criteria for the approval of educational and continuing educational programs and courses of study for appraisers and establishing criteria for the approval of the courses required under ss.458.06 (2) (d) and 458.08 (2) (d)."
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
125 hours.
6. List with Description of all Entities that may be Affected by the Proposed Rule
Licensed appraisers, certified residential appraisers, and certified general appraisers as well as applicants and individuals who hold these credentials.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
Title XI Financial Institutions Reform, Recovery, and Enforcement Act of 1989 mandates that all state certified appraisers must meet the minimum education, experience, and examination requirements promulgated by the Appraisal Qualifications Board (AQB).
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)
The Department anticipates a minimal economic impact.
9. Contact Person
Shawn Leatherwood, (608) 261-4438.
Workforce Development
This statement of scope was approved by the Governor on September 27, 2013.
Rule No.
Relating to
Rule Type
Permanent.
1. Finding/Nature of the Emergency (Emergency Rule Only).
N/A.
2. Detailed Description of the Objective of the Proposed Rule
The proposed rule will ensure that the Department of Workforce Development (Department) is enacting amendments to the unemployment insurance (UI) administrative rules that are required by or necessary as a result of the passage of
2013 Wisconsin Act 20 and
2013 Wisconsin Act 36. Consistent with this legislation, the proposed rule will also create the administrative procedures to:
•
Waive or decrease interest charged to an employer that submits a late payment for UI taxes.
•
Provide procedural protections to employers who are subject to a denial or revocation of a license based on delinquent UI contributions.
•
Provide a standardized affidavit form for use in UI administrative appeal hearings.
•
Accept a late optional successorship application from a business.
•
Implement a financial record matching program.
In addition, the Department will repeal various rule sections due to amendments to the statutes requiring repeal of the administrative code provisions and make minor and technical corrections to current rules.
3. Description of Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Section
108.22, Stats., grants the Department the authority to assess a tardy filing fee on employers that file a late quarterly wage report. Section
DWD 111.07 identifies when the Department will assess the tardy filing fee and the criteria for determining the amount of the fee.
2013 Wisconsin Act 36 amended s.
108.22, Stats., and provides that an employer shall be charged a tardy filing fee
for each delinquent quarterly report in the amount of $100, or $20 per employee, or, if the report is filed within 30 days of its due date, in the amount of $50. The changes made by
2013 Wisconsin Act 36 are inconsistent with the current provisions of s.
DWD 111.07. As a result, the provisions of s.
DWD 111.07 should be amended to reflect current law.
Section
108.22, Stats., provides that the Department shall charge interest when an employer is delinquent in paying UI taxes.
2013 Wisconsin Act 36 creates s.
108.22 (1) (cm), Stats. In limited circumstances, s.
108.22 (1) (cm), Stats., grants the Department the authority to waive or decrease the interest charged to employers who are late in making their unemployment insurance tax payments and provides that the Department shall prescribe rules to exercise this authority. Chapter
DWD 113 controls the Department's ability to waive or decrease the interest charged. The Department intends to amend this chapter to reflect the changes provided by
2013 Wisconsin Act 36.
2013 Wisconsin Act 36 creates s.
108.227, Stats., and grants the Department for the first time the ability to revoke various licenses or deny an application for various licenses based on delinquent UI contributions.
2013 Wisconsin Act 36 requires the Department to promulgate rules with respect to the process the Department will use when it seeks to revoke a license or deny an application for a license as a result of the employer being delinquent in paying UI contributions. The Department will promulgate these rules by creating ch.
DWD 114.
2013 Wisconsin Act 36 creates s.
108.223, Stats., and grants the Department for the first time the authority to operate a financial records matching program. This program allows the Department to identify the assets held at financial institutions of persons who are delinquent in paying debts related to the UI program. Chapter
DWD 114 will be created to include procedures and requirements for financial institutions for implementation of the program. Similar programs are being operated by the Departments of Children and Families, Revenue, and Health Services. The Department intends to promulgate rules to ensure that the program operated by the Department can be run consistently with the Departments of Children and Families, Revenue, and Health Services. These rules will be promulgated within the newly created ch.
DWD 114.
Section
108.16 (8) (b) 4., Stats., outlines the statutory requirements for the Department to accept an optional successorship application from a business.
Successorship occurs when all or a portion of the former owner's UI account is transferred to the new owner due to a transfer of all, or a portion of, the business. If a former business has a positive UI account, in limited circumstances the new owner of the business may elect to file an optional successorship application with the Department. Consistent with s.108.16 (8) (b) 4., Stats., s.
DWD 115.07 (2) affords the requirements the Department must follow in accepting an optional successorship application from a business.
2013 Wisconsin Act 36 amended the provisions of s.
108.16 (8) (b) 4., Stats., to allow the Department the ability to accept a late optional successorship application from a business, if the application was late as a result of excusable neglect. Amendments to s.
DWD 115.07 (2) are necessary to make rule provisions consistent with the newly amended s.
108.16 (8) (b) 4., Stats.
2013 Wisconsin Act 20 repealed s. 108.04 (7) (k), Stats. This provision provided that a UI claimant who quits a job was still eligible for UI benefits if the claimant had two jobs and the claimant had quit a part-time job because it was economically not feasible to maintain due to the loss of his or her full-time job. Section
DWD 132.03 clarified the provisions of s.
108.04 (7) (k) prior to its repeal by
2013 Wisconsin Act 20, Stats., and is no longer needed.
2013 Wisconsin Act 36 created s.
108.14 (26), Stats. Section
108.14 (26), Stats., provides that the Department shall prescribe by rule a standard affidavit form that may be used by parties involved in UI administrative appeals. Chapter
DWD 140 provisions control appeals, and the Department will prescribe the standard affidavit form within this chapter. In addition, the Department will amend sections within ch.
DWD 140 to incorporate modern technology changes for UI administrative appeals.
The policy alternative of doing nothing is not acceptable. If the Department fails to adopt these amendments to the already existing rules and create ch.
DWD 114, the administrative rules will be inconsistent with recently adopted amendments to state statutes as a result of the passage of
2013 Wisconsin Act 20 and
2013 Wisconsin Act 36.
4. Detailed Explanation of Statutory Authority for the Rule, Including the Statutory Citation and Language
Section
108.14 (2), Stats., provides in part, “[t]he department may adopt and enforce all rules which it finds necessary or suitable to carry out this chapter."
Section
108.22 (1) (cm), Stats., provides in part, “[i]n limited circumstances as prescribed by rule of the department, the department may waive or decrease the interest charged" to employers subject to the UI program.
Section
108.227 (1m), Stats., provides in part, “[t]he department shall promulgate rules specifying procedures to be used before taking action" to suspend a license of an employer who is delinquent in paying UI taxes.
Section
108.14 (26), Stats., provides in part, “[t]he department shall prescribe by rule a standard affidavit form that may be used by parties to [UI] appeals."
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule, and Other Resources Necessary to Develop the Rule
The total amount of staff time for developing the rule is estimated to be 480 hours.
6. List with Description of all Entities that may be Affected by the Proposed Rule
These amendments will impact employers who are subject to the Wisconsin UI system as follows:
•
First, these amendments to the rules will impact employers who are delinquent in filing UI reports or in paying UI taxes.
•
Second, these amendments to the rules will impact the process that a new employer must use if they satisfy the statutory requirements and elect to be optional successor to the UI account of a former employer.
These amendments will make the Department's operation of its newly created financial records matching program be consistent with the same program operated by the Department of Revenue. Therefore, these amendments also impact financial institutions in the state. Finally, these amendments will impact parties to hearings related to UI appeals.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
Unemployment insurance was initiated on a national basis in the United States as Title III and Title IX of the Social Security Act of 1935 and is a Federal-State coordinated program. Each state administers its own program within national guidelines promulgated under federal law. As a condition of a state receiving its unemployment compensation administrative grant, 42 U.S.C. s. 503 (a) provides that the Secretary of Labor must find that the law of the state includes certain requirements. One of those requirements is that a claimant must have the opportunity for a fair hearing, before an impartial tribunal, if a state UI agency denies a claim for unemployment compensation. The newly created requirement, under s.
108.14 (26), Stats., provides that the Department shall prescribe by rule a standard affidavit form that may be used by parties involved in UI administrative appeals. Use of a standard affidavit as part of the UI appeal process, is consistent with this federal mandate.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have an Economic Impact on Small Businesses)
Because these rules carry forward the UI proposals contained in
2013 Wisconsin Act 36, the fiscal note for this Act (copy attached for
2013 Wisconsin Act 36) also incorporates the economic impact of the amendments to the rules.
9. Contact Person
