Scope Statements
Agriculture, Trade and Consumer Protection
The statement of scope was approved by the governor on October 8, 2014.
Rule No.
Relating to
Animal disease and movement; animal markets, dealers, and truckers.
Rule Type
Permanent.
1. Description of the Objective of the Rule
The current rules will be reviewed to ensure provisions are clearly written and consistently stated throughout chs.
ATCP 10 and
12, Wis. Admin. Code. The department will make minor modifications resulting from that review.
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
Division of Animal Health staff have concluded that certain provisions in chs.
ATCP 10 and
12 are unclear, or inconsistent with other rule provisions, with related statute provisions, or with federal regulations. Those issues have arisen: while implementing programs with requirements specified in chs.
ATCP 10 and
12; in contacts with individuals licensed through the division; or, in contacts with veterinarians and industries regulated by the division and the United States Department of Agriculture. The division has also received requests from individuals and industries to modify certain program requirements through amendments to ch.
ATCP 10 or
12.
The following subjects in chs.
ATCP 10 and
12, Wis. Admin. Code, will be reviewed to address these issues, and may be modified as a result. The statutory authority to promulgate rules is identified for each subject area.
• Import requirements (see ss.
93.07 (1),
(2), and
(10),
95.20,
95.45 (3),
95.55 (6),
95.60 (4s),
95.68 (8),
95.69 (8),
95.71 (8), and
95.715 (2) (d), Wis. Stats.).
• Disease reporting requirements (see ss.
93.07 (1) and
(10),
93.15,
95.20,
95.22 (1) and
(2),
95.38,
95.43,
95.55 (6),
95.60 (4s),
95.68 (8),
95.69 (8),
95.71 (8) and
95.715 (2) (d), Wis. Stats.).
• Requirements for approval by the department for persons collecting test samples, laboratories, out-of-state forms, etc. (see ss.
93.07 (1),
(2), and
(10),
93.15,
95.20,
95.38,
95.42,
95.43,
95.45 (4) (c),
95.55 (6), and
95.60 (4s), Wis. Stats.).
• Recordkeeping requirements by licensees, including acceptability of electronic storage of records (see ss.
93.07 (1),
(2), and
(10),
93.15,
95.20,
95.22 (1) and
(2),
95.38,
95.42,
95.43,
95.45 (3),
95.55 (6),
95.60 (4s),
95.68 (8),
95.69 (8),
95.71 (8), and
95.715 (2) (d), Wis. Stats.).
As of this date, there are no existing policies and no new policies that will be incorporated into the proposed rule.
If the department does not modify current rule provisions, identified as unclear or inconsistent, it may cause difficulties for individuals or entities in Wisconsin attempting to follow rule requirements.
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.
(2) FORMS. To prescribe forms for all applications, notices and reports required to be made to the department or which are necessary in its work.
* * *
(10) ANIMAL HEALTH; QUARANTINE. To protect the health of animals located in this state and of humans residing in this state and to determine and employ the most efficient and practical means for the prevention, suppression, control, and eradication of communicable diseases among animals. For these purposes, the department may establish, maintain, enforce, and regulate such quarantine and such other measures relating to the importation, movement, and care of animals and their products, the disinfection of suspected localities and articles, and the disposition of animals, as the department determines are necessary. The definition of “communicable disease" in s.
990.01 (5g) does not apply to this subsection.
93.15 Reports to department; inspections.
(1) The department may, by general or special order, require persons engaged in business to file with the department, at such time and in such manner as the department may direct, sworn or unsworn reports or sworn or unsworn answers in writing to specific questions, as to any matter which the department may investigate.
(2) The department or any of its authorized agents may have access to and may copy any document, or any part thereof, which is in the possession or under the control of any person engaged in business, if such document, or such part thereof, is relevant to any matter which the department may investigate.
(3) No person shall refuse or fail to render any report or answer required under this section at such time and in such manner as the department may prescribe. No person shall refuse, neglect or fail to submit, for the purpose of inspection or copying, any document demanded under this section. No person shall willfully make any false entry or statement in any report or answer required or document demanded under this section. No person shall willfully fail to make full and true entries and statements in any report or answer required or document demanded under this section. No person shall, for the purpose of embarrassing the department in the conduct of any investigation, hearing or proceeding, remove out of the state or mutilate or alter any document. No person shall, except through judicial process, resist or obstruct any official or subordinate of the department in the exercise of the official's or subordinate's lawful authority.
95.20 Import and movement of animals. The department may prohibit or regulate the importing of animals into this state or the movement of animals within this state if the department has reasonable grounds to believe that regulation or prohibition is necessary to prevent the introduction or spread of a disease in this state that threatens the health of animals or of humans.
95.22 Reporting animal diseases.
(1) A veterinarian and the department of natural resources shall report to the department of agriculture, trade and consumer protection any disease specified in the rules promulgated under sub. (2) (a) each time a veterinarian or the department of natural resources discovers that such a disease is present in any animal in this state.
(2) The department shall promulgate rules that specify all of the following:
(a) The diseases that a veterinarian or the department of natural resources must report under this section.
(b) For each disease specified in par. (a), the deadline for reporting the disease after the date of its discovery.
(c) The information that a veterinarian or the department of natural resources must include in his or her report.
(d) Procedures to be used in preparing and submitting the report.
* * *
95.38 Altering records; tampering with ear tags.
* * *
(3) The department may adopt rules that are necessary to administer this section.
95.42 Revocation of permit to test. Only veterinarians approved by the department may apply the tuberculin test to cattle and farm-raised deer, and no veterinarian applying the test may tag or brand reactors except as specifically authorized or directed by the department. Any veterinarian who fails to comply with this section and the rules and instructions furnished by the department shall forfeit all right to apply the tuberculin test.
95.43 Application of brucellosis test.
(1) The brucellosis test shall be applied only by approved veterinarians. Any veterinarian who fails to comply with the laws or regulations of the department relating to disease control may be denied such approval.
(2) Every veterinarian who applies the brucellosis test shall promptly reactor tag and permanently mark all reactors in conformity with the law and the regulations of the department, and shall promptly report the result of each test to the department. No person shall interfere in any way with the identification of reactors as required herein.
95.45 Certificates of veterinary inspection; tests for interstate shipment.
* * *
(4) (c) The department may promulgate rules to impose requirements on the form, issuance, and filing of certificates of veterinary inspection.
* * *
95.55 Farm-raised deer.
* * *
(6) RULES. (a) The department shall promulgate rules to regulate persons who keep farm-raised deer. The rules shall establish disease testing requirements for bovine tuberculosis and chronic wasting disease and may establish testing requirements for other diseases.
(b) The rules promulgated under this subsection may include any of the following:
1. Standards to be followed by persons keeping farm- raised deer to prevent the spread of disease.
2. Provisions requiring that registration under this section be on an annual basis.
3. Exemptions from any annual registration requirements established under subd. 2.
95.60 Importing fish; fish farms.
* * *
(4s) The department shall do all of the following:
(a) In consultation with the department of natural resources, promulgate rules specifying requirements for the labeling and identification, in commerce, of fish reared in fish farms.
(b) In consultation with the department of natural resources, promulgate rules specifying fish health standards and requirements for certifying that fish meet those standards for the purpose of s.
29.736.
(c) Promulgate rules specifying the qualifications that a person who is not a veterinarian must satisfy in order to provide evidence of fish health.
(d) In consultation with the department of natural resources, promulgate rules specifying diseases and requirements for certifying that fish are free of those diseases for the purposes of sub. (2) (b).
(e) Promulgate rules establishing the period for which a record required under sub. (4) (c) must be retained.
* * *
95.68 Animal markets.
* * *
(2m) EXEMPTIONS.
(a) A person is not required to obtain a license under sub. (2) to operate an occasional auction sale sponsored by a livestock breeder association or a youth agricultural organization if records of the transactions at the sale are maintained by an auctioneer registered under ch. 480 or by an animal dealer licensed under s. 95.69.
(b) The department may promulgate rules to exempt groups of persons from the licensing requirement under sub. (2) or the registration requirement under sub. (7) or both.
* * *
(8) RULES. The department may promulgate rules to regulate the operation of animal markets, including rules related to market operator qualifications, market construction and maintenance, construction and maintenance of animal transport vehicles, identification of animal transport vehicles, disease sanitation, humane treatment of animals, identification of animals, record keeping, reports to the department and compliance with applicable financial security requirements under state or federal law.
* * *
95.69 Animal dealers.
* * *
(2m) EXEMPTION. The department may promulgate rules to exempt groups of persons from the licensing requirement under sub. (2) or the registration requirement under sub. (7) or both.
* * *
(8) RULES. The department may promulgate rules to regulate animal dealers, including rules related to animal dealer qualifications, construction and maintenance of animal transport vehicles, identification of animal transport vehicles, disease sanitation, humane treatment of animals, identification of animals, record keeping, reports to the department and compliance with applicable financial security requirements under state or federal law.
* * *
95.71 Animal truckers.
* * *
(8) RULES. The department may promulgate rules to regulate animal truckers, including rules related to animal trucker qualifications, construction and maintenance of animal transport vehicles, identification of animal transport vehicles, disease sanitation, humane treatment of animals, identification of animals, record keeping, reports to the department and compliance with applicable financial security requirements under state or federal law.
* * *
95.715 Feed lots and veal lots.
* * *
(2) APPROVED FEED LOT.
* * *
(d) The department may promulgate rules to specify permit fees under par. (a) and to regulate feed lots. The rules may include requirements related to the construction and maintenance of approved feed lots, the segregation of imported feeder cattle and record-keeping requirements related to feeder cattle.
* * *
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 0.80 FTE staff to develop this rule. That includes time required for investigation and analysis, rule drafting, preparing related documents, coordinating advisory committee meetings, 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
The rule will make minor modifications in order to provide consistency and clarity to chs.
ATCP 10 and
12 and will provide important health protection for the Wisconsin livestock industry. This rule will have a direct impact on animal markets, animal dealers, animal truckers, veterinarians, livestock operators, and other persons licensed by the department.
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
Existing federal accreditation standards for veterinarians and animal traceability requirements will require changes in Wisconsin Administrative Rule requirements for accredited and state certified veterinarians.
Also, to comply with existing federal traceability requirements, Wisconsin administrative rules must be updated to allow only the acceptance of official, individual identification of cattle when dealing with vaccination or official disease testing.
7. Anticipated Economic Impact
DATCP expects the rule to have minimal to no economic impact statewide and locally.
Contact Person
Darlene Konkle, DVM, Assistant State Veterinarian, DATCP; Phone (608) 224-4902.
Health Services
Community Services, Chs.
30—
The statement of scope was approved by the governor on September 12, 2014.
Rule No.
Relating to
Federally recognized American Indian tribes or bands participating in the intoxicated driver program.
Rule Type
Permanent.
Type of Statement of Scope
Original
1. Finding/Nature of Emergency (Emergency Rule Only)
Not applicable.
2. Detailed Description of the Objective of the Proposed Rule
The objective of the rulemaking is to conform ch.
DHS 62 to ch.
51, Stats., and s.
343.30 (1q), Stats., as amended by
2013 Wisconsin Act 246, relating to federally recognized American Indian tribes or bands participating in the intoxicated driver program.
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
Chapter
DHS 62 establishes, under ss. 343.30 (1q) (c) 2. and 343.305 (10) (c) 2., Stats., the standards for assessment procedures, driver safety plan programs, and conflict of interest guidelines for approved public and private intoxicated driver assessment facilities designated by a county board to conduct intoxicated driver assessments. The conflict of interest provisions prohibit an assessment facility from also being a person's driver safety plan provider unless specified conditions apply.
The legislature by
2013 Wisconsin Act 246 amended or created provisions in chs.
20,
46,
51,
343,
345, and
346, Stats., making it possible for approved tribal treatment facilities, as defined in s.
51.01 (2c), Stats., to operate an intoxicated driver program, which includes conducting intoxicated driver assessments and developing driver safety plans. If the person who is court-ordered to submit to and comply with an intoxicated driver assessment is a member or relative of a member of a federally-recognized American Indian tribe or band, the approved tribal treatment facility may conduct an assessment for that person. The department's conflict of interest guidelines may not preclude an approved tribal treatment facility from conducting assessments and providing treatment under s.
343.30 (1q), Stats., as amended by
2013 Wisconsin Act 246.
To conform ch.
DHS 62 to ch.
51, Stats., and s.
343.30 (1q), Stats., as amended by
2013 Wisconsin Act 246, the department proposes to revise ch.
DHS 62 to reflect that approved tribal treatment agencies as defined in s.
51.01 (2c), Stats., are subject to ch.
DHS 62, and to ensure that the conflict of interest guidelines established in ch.
DHS 62 do not preclude approved tribal treatment agencies, as defined in s.
51.01 (2c), Stats., from meeting their responsibilities under s.
343.30 (1) (q), Stats.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section 227.11 (2) (a), Stats., reads: Rule-making authority is expressly conferred on an agency as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Section 343.30 (1q) (c) 2., Stats., reads: The department of health services shall establish standards for assessment procedures and the driver safety plan programs by rule. The department of health services shall establish by rule conflict of interest guidelines for providers. The conflict of interest guidelines may not preclude an approved tribal treatment facility, as defined in s. 51.01 (2c), from conducting assessments and providing treatment under this subsection.
Section 343.305 (10) (c) 2., Stats, reads: The department of health services shall establish standards for assessment procedures and the driver safety plan programs by rule. The department of health services shall establish by rule conflict of interest guidelines for providers.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
Department staff may spend 80 hours promulgating the rule. No other resources are necessary to develop the rule.
6. List with Description of all Entities that may be Affected by the Proposed Rule
Federally recognized American Indian tribes or bands and approved tribal treatment agencies, as defined under s.
51.01 (2c), Stats.
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 appear to be no existing or proposed federal regulations that address the activities to be regulated by the proposed rule.
8. Anticipated Economic Impact of Implementing the Rule
The department anticipates little to no economic impact from the proposed revisions to ch.
DHS 62.
Contact Person
LeeAnn Cooper, IDP Coordinator
Division of Mental Health and Substance Abuse Services
Bureau of Prevention Treatment and Recovery
608-266-2453
Safety and Professional Services —
Medical Examining Board
The statement of scope was approved by the governor on October 2, 2014.
Rule No.
Relating to
Entrance to exams.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
None.
2. Detailed Description of the Objective of the Proposed Rule
The purpose of the proposed rule is to bring current Wisconsin Administrative Code in line with recent legislation, specifically
2013 Wisconsin Act 114.
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
Pursuant to the enactment of
2013 Wisconsin Act 114, the Department of Safety and Professional Services and its attached boards may no longer require any person applying for professional licensure to complete their postsecondary education prior to being eligible to take an examination for a credential. In accordance with this legislation, the Wisconsin Medical Examining Board must allow applicants for physician licensure to take their credentialing exam before completing their postsecondary education. The proposed rule will implement this change by amending Wis. Admin. Code ch.
Med 1.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section
15.08 (5) (b), Stats., provides examining boards, “shall promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains. . ." The proposed rule seeks to provide guidance on eligibility for licensure examination.
Section
227.11 (2) (a), Stats., discusses the parameters of an agency's rule-making authority by stating that an agency, “may promulgate rules interpreting provisions of any statute enforced or administered by the agency. . . .but a rule is not valid if it exceeds the bounds of correct interpretation. . ." This section allows an agency to promulgate administrative rules which interpret the statutes it enforces or administers as long as the proposed rule does not exceed proper interpretation of the statute.
Section
440.071 (1), Stats., provides that, “the department or a credentialing board or other board in the department may not require a person to complete any postsecondary education or other program before the person is eligible to take an examination for a credential the department or credentialing board or other board in the department grants or issues."
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
State employees will spend approximately 50 hours developing the proposed rule.
6. List with Description of all Entities that may be Affected by the Proposed Rule
The proposed rule will affect applicants for physician licensure.
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
None.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to Have a Significant Economic Impact on Small Businesses)
The proposed rule is likely to have minimal or no economic impact on small businesses.
Contact Person
Shawn Leatherwood
608-261-4438
Transportation
The statement of scope was approved by the governor on October 16, 2014.
Rule No.
Relating to
Motor carrier safety.
Rule Type
Emergency.
Finding/Nature of Emergency (Emergency Rules Only)
The welfare of commercial motor vehicle drivers who hold a commercial driver license (“CDL") issued by the State of Wisconsin who operate commercial motor vehicles outside this state, and the welfare of Wisconsin shippers who engage those driving services, will be harmed if they cannot demonstrate compliance with recent federal regulations because other states will view them as unlicensed drivers and will delay transport of those loads. Federal regulations require CDL holders to have certified to their state of licensure the type of commercial driving operations in which they engage and, if required, to have filed with the state of licensure proof of medical fitness to drive, and to have their electronic driving records updated by the state of licensure to show they have completed these actions, before driving a commercial motor vehicle. The Department published the scope statement for permanent rulemaking in September 2011 to implement these federal requirements. The permanent rulemaking effort is ongoing but cannot take effect before the Wisconsin Legislature reconvenes in January 2015.
Description of the Objective of the Rule
The federal regulations at
49 CFR 383 and
391 were revised by "Medical Certification Requirements as Part of the CDL", 73 FR 73096 (Dec. 1, 2008; RIN 2126-AA10). These federal regulations require, no later than January 30, 2014, all commercial driver license (“CDL") holders to provide information to their state driver licensing agency (“SDLA") regarding the type of commercial motor vehicle operation they drive in or expect to drive in with their CDL. Drivers operating in certain types of commerce will be required to submit a current medical examiner's certificate to their SDLA to obtain a “certified" medical status as part of their driving record. Federal regulations require states to downgrade the CDL privileges of any CDL holder required to have a “certified" medical status who fails to provide and keep up-to-date their medical examiner's certificate with their SDLA. The revisions to the regulations did not change the requirement to obtain medical certifications.
This rule implements the federal requirements for commercial drivers obtaining and submitting medical certificates in conformity with those federal regulations. Section
343.065 (3) of the Wisconsin statutes, created by
2011 Wisconsin Act 32, authorizes the Department to downgrade commercial drivers licenses of drivers who fail to provide federally mandated medical certifications, and to promulgate rules defining this downgrade process.
This rulemaking will allow the Department to:
• Define the procedures for drivers to certify their driving type (Tier) to the Department;
• Define the procedures for submitting federally required medical certifications to the Department, and for the Department to enter that certification on the driving record;
• Create the process for downgrading a CDL and reinstating a CDL after the downgrade has occurred; and
• Describe the types of notifications drivers and employers will receive prior to the federal medical card expiration; when the driver is downgraded; and when the driver is reinstated.
Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Since January 2012, federal law requires all original and renewal applicants for a commercial driver's license to certify their driving type (Tier). Drivers operating in interstate commerce who are not subject to the exceptions identified (Tier 1) must furnish and maintain a current, valid copy of their federal medical certificate (sometimes called a "Fed Med card") to the Department. The Department must electronically capture the information on the federal medical certificate, and retain a copy of the federal medical certificate on file.
In January 2014, all persons in Wisconsin who hold a commercial driver's license (CDL) will be required to comply with these requirements. The Department will downgrade drivers who fail to comply with these requirements in accordance with the procedures defined below. The Department has already downgraded any driver who has not complied with these requirements, and the Department believes that all drivers have either complied or have already been downgraded.
These federal regulations require, and s.
343.065 (3), Wis. Stats., authorizes, the Department to downgrade a driver's commercial driving privileges if the driver does not certify a tier
, or if the driver is operating in non-excepted interstate commerce (Tier 1) and fails to submit a federal medical certificate or to keep his or her federal medical certificate up-to-date.
Several alternatives exist to implementing these new regulations for allowing drivers to certify their driving type as well as the downgrade process.
Alternatives for Commercial Drivers to Certify Driving Type
1. Do nothing. Ignoring the federal regulations will result in drivers who hold Wisconsin CDL's being treated as unlicensed drivers when traveling out of state. This will delay transport of loads, harming shippers and buyers. In addition, Wisconsin would lose approximately $4.7 million dollars in motor carrier safety assistance program (MCSAP) and highway funds annually. The Department believes taking no action is impractical.
2. Require all CDL holders to visit a DMV field service station to certify their Tier of driving and provide proof of their federal medical certificate.
This approach is burdensome, and is not feasible for Wisconsin drivers who are currently out of state.
3. Require all CDL holders to use an electronic or online process to certify their driving type and provide federal medical certificate information to DMV.
This approach is not feasible for drivers with limited access to computers and the Internet.
4. Create a hybrid system that allows drivers to choose to certify and provide federal medical documentation electronically, or to certify and present the federal medical certificate in person at a DMV field station.
This approach will allow drivers and their employers' flexibility in how they provide this information. As such, the Department will pursue this approach.
Alternatives for Downgrade Process
The federal regulations offer several alternatives for downgrading a CDL for drivers that are operating in interstate, non-excepted commerce (Tier 1). Note: The following downgrade process does not apply to drivers who will not operate in interstate, non-excepted commerce. Those drivers are not required to keep updated federal medical information on file with the Department.
1. Do nothing. Ignoring the federal regulations will result in drivers who hold Wisconsin CDL's being treated as unlicensed drivers when traveling out of state. In addition, Wisconsin would lose approximately $4.7 million dollars in motor carrier safety assistance program (MCSAP) and highway funds annually. The Department believes taking no action is impractical.
2. Change the Tier 1 driver's certification of their driving type to operating exclusively in intrastate commerce (Tier 3).
Drivers operating solely in intrastate commerce must have restrictions added to their CDL. As such, to implement this alternative, the Department would have to re-issue the CDL document every time a Tier 1 driver was downgraded to ensure the physical license matched the electronic record. To remove the downgrade, drivers would be required to visit a DMV field station, provide their federal medical certificate, and pay a fee for a duplicate license. This would be burdensome and impractical for Wisconsin CDL drivers who are currently out of state. This approach would require considerable staff resources and potential delays for drivers, since DMV field stations are not open seven days a week.
3. Remove the CDL privileges from the driver's license.
The CDL privileges will be removed from the driver's license using a "Voluntary Temporary Surrender" (VTS), which will appear on the electronic record only. The driver's commercial classes & endorsements will remain printed on the license document, but drivers will not be able to legally operate in interstate commerce until a copy of an updated federal medical certificate is provided to the Department.
While this alternative may seem unduly burdensome, it is actually much easier for the drivers to get their privileges back. They (or their employer) can submit their federal medical certificate to the Department either in person or electronically via the Department's secure web system. Once the new federal medical certificate is recorded on the driver's record, the driver's commercial privileges are restored. Drivers can easily comply, even from out of state.
In addition, the drivers can retain their current physical driver licenses, and will not be required to pay a fee to regain their commercial operating privileges. The Department will pursue this approach for downgrading.
Other Policy Items
The Department plans to use the VTS process for commercial drivers who may be revoked, suspended, or disqualified for other reasons. The VTS allows the Department to track the federal medical requirements as well as the underlying reason for the suspension, revocation, or disqualification.
In accordance with federal regulations, the Department will notify Tier 1 commercial drivers 60 days prior to the expiration of their federal medical certificate. If the Department does not receive an updated federal medical certificate, the driver will be downgraded ten days after the expiration of the current federal medical certificate, using the VTS process described above. The driver will receive notification of this action.
The Department also plans to use its Employer Notification system to provide up-to-date information to employers about each of their drivers' certified Tier of operation and current status of their federal medical certificates.
This rule-making defines federal medical certificates as part of the driver application. This allows the Department to take appropriate action when receiving a fraudulent federal medical certificate.
Statutory Authority for the Rule (Including the Statutory Citation and Language)
2011 Wisconsin Act 32 (the biennial budget bill) created s.
343.065 (a), Stats.
, which gives the Department authority to downgrade a commercial driver license if a federal medical certificate is not on file. Section
343.065 (3) (b), Stats., requires the Department to:
1.
Promulgate rules to define "downgrade" in accordance with federal law and regulations or guidance from the applicable federal agency.
2.
Establish the process for downgrading a commercial driver license and whether a new commercial driver license document will be issued after a commercial driver license is downgraded.
3.
Establish the process for reinstating a downgraded commercial driver license after the Department receives from the licensee a valid medical certification or other appropriate certification of physical qualifications.
Section
343.06 (3), Stats., requires the Department to ensure that CDL holders meet federal physical qualifications for drivers contained in
49 CFR 391.
Estimate of the Amount of Time that State Employees Will Spend to Develop the Rule And of Other Resources Necessary to Develop the Rule
It is estimated this emergency rule will take approximately 10 hours to develop. The Department is currently drafting a permanent rule on the same subject to comply with existing federal requirements, but the permanent rule cannot take effect before the Wisconsin Legislature reconvenes in January 2015. Other resources necessary to successfully implement the emergency rule include computer programming resources, and an outreach campaign to affected commercial drivers and other interested stakeholders, which would otherwise be done for the permanent rule.
Description of all Entities that may be Impacted by the Rule
This emergency rule will affect all Wisconsin drivers who currently hold a Commercial Driver License (CDL). As of December 2010, when the permanent rule-making commenced, there were 289,596 persons holding commercial drivers licenses, of which 224,860 were valid (not withdrawn or expired). It will also indirectly impact motor carrier companies, employers of commercial drivers, law enforcement, other state driver licensing agencies, and the Federal Motor Carrier Safety Administration.
Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation That is Intended to Address the Activities to be Regulated by the Rule
This emergency rule-making is intended to ensure Wisconsin's compliance with new federal regulations in
49 CFR Parts 383 and
391, requiring drivers of commercial motor vehicles to certify their type of driving to the Department
, and to submit a copy of their federal medical certificate to the Department
.
All states are required to comply with these new federal regulations.
Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to Have a Significant Economic Impact on Small Businesses)
Comments to the proposed federal regulations identified the following potential burdens on drivers: 1) Requiring drivers to travel to the DMV to make the certification or provide medical certifications; 2) The extra cost for drivers to obtain new CDLs or medical certifications; 3) The extra cost to drivers of corresponding more frequently with the SDLA; 4) Requiring drivers to maintain proof of medical fitness during extended periods of absence from driving. The Department intends to minimize these impacts on drivers, as those actions carry proportionate cost increases to the Department.
Comments to the proposed federal regulations noted that prior to the federal rule-making; drivers provided the proof of medical certification directly to the employer. Under the new federal regulation, the employer must now verify the driving record by inquiry to the SDLA.
Currently, employers are required to verify the driver is legal to drive at the time of employment, and requiring employers to query the Department for this status seems insignificant.
The Department anticipates no significant economic impact on parties affected by this rule.
Contact Person
Alison Lebwohl, (608) 266-0054.
