Explanation of agency authority
The Department is required under s.
285.21 (1) (a)
, Stats., to promulgate by rule ambient air standards similar to, but not more restrictive than the national ambient air quality standards (NAAQS). The Department is also authorized under s.
285.11 (1)
and
(6)
, Stats., to promulgate rules and establish control strategies in order to prepare and implement the State Implementation Plan for the prevention, abatement and control of air pollution in the state.
Related statute or rule
There are no related statutes that are not identified above.
Plain language analysis
Chapter
NR 404
, Wis. Adm. Code, contains ambient air standards which are intended to be the same as the federal NAAQS promulgated by EPA, as is required under s.
285.21(1)(a)
, Stats. Chapter
NR 438
, Wis. Adm. Code, establishes requirements for submission of reports for owners or operators of air contaminant sources related to the ambient air standards that are employed by the Department. The Clean Air Act requires EPA to review the latest scientific information every five years and promulgate NAAQS which are designated to protect public and public welfare. In 2008, EPA strengthened the 8-hour ozone NAAQS to 0.075 ppm and revised the NAAQS for lead from 1.5 micrograms/cubic meter (
m
g/m
3
) to 0.15
m
g/m
3
.
The Department is proposing to amend chs.
NR 404
and
438
, Wis. Adm. Code
,
to maintain consistency with the federal NAAQS. Specifically, the proposed rule revisions would: A) adopt the ozone and lead NAAQS into ch.
NR 404
, Wis. Adm. Code; and B) incorporate the corresponding lead reporting requirements into ch.
NR 438
, Wis. Adm. Code.
Comparison with federal regulations
The federally-enforced NAAQS are contained in Title 40, Part 50 of the Code of Federal Regulations (
40 CFR Part 50
). The purpose of these proposed rules is to make the State-enforced ambient air standards for ozone and lead in ch.
NR 404
, Wis. Adm. Code, consistent with the corresponding federal NAAQS, as required under s.
285.21
(a), Stats.
Comparison with rules in adjacent states
These proposed rule revisions are designed to make Wisconsin's ambient air quality standards consistent with federal NAAQS, which are effective and enforced throughout the United States. Consequently, these proposed rules would be identical to the ambient air standard regulations in effect in the adjacent states.
Summary of factual data and analytical methodologies
The EPA, through its Clean Air Scientific Advisory Committee has conducted exhaustive reviews and assessments on the health science of air pollution impacts to human health and welfare. This research has yielded NAAQS that are based upon sound health science designed to protect public health and welfare. The Department is accepting this extensive federal research as this order's factual data and analytical methodologies. Information on the federal rule changes are obtained from the federal registers published on March 27, 2008 (Vol. 73, No. 60) for ozone and on November 12, 2008 (Vol. 73, No. 219) for lead.
Analysis and supporting documents used to determine effect on small business
In light of the statutory requirement to promulgate by rule new ambient air quality standards similar to but not more restrictive than the federal standards, the Department relies on the federal data and the analytical methodologies EPA used to develop and promulgate the national ambient air quality standards
.
EPA analysis establishes that NAAQS do not have significant impacts upon small entities, including small businesses because NAAQS themselves impose no regulations upon small entities. Information on the analysis and supporting documents used to determine effect on small entities are contained in the EPA's Regulatory Impact Analysis (RIA) docket EPA-HQ-OAR-2007-0225 for the ozone NAAQS and RIA docket EPA-HQ-OAR-2006-0735 for the lead NAAQS.
An economic impact report has not been requested.
Small Business Impact
The promulgation of the ozone and lead ambient air quality standards would not have any direct effect on businesses, including those defined as small business. Following the promulgation of the ozone and lead air quality standards, the EPA will determine if any areas in the state should be designated as nonattainment for either of the new air quality standards. The Department is required to develop an air quality management state implementation plan (SIP) to ensure that all ambient air quality standards are attained and maintained in all areas of the state. The future development of that SIP to address ozone and lead may result in emission limitations being developed for specific source categories or implementing emission control technologies which may affect businesses, including small businesses. Any prospective SIP revisions would occur through the development of additional rules, which would include analyses of the rules' potential effects on the private sector, including small businesses.
Environmental Analysis
The DNR has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch.
NR 150
, Wis. Adm. Code. However, based on the comments received, the DNR may prepare an environmental analysis before proceeding. This analysis would summarize the DNR's consideration of the impacts of the proposal and any reasonable alternatives.
Fiscal Estimate
Summary
The proposed rules will not have any direct economic impact on the private sector. If, in the future, EPA were to designate any areas in the state as non-attainment areas for either of the proposed ambient air quality standards, it could become necessary to develop rules to control emissions of ozone precursors or lead. If such rules become necessary, any potential economic impact to the private sector will be evaluated at that time.
State fiscal effect
None.
Local government fiscal effect
None.
Notice of Hearing
Pharmacy Examining Board
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Pharmacy Examining Board in ss.
15.08 (5) (b)
,
227.11 (2)
and
450.02 (3) (a)
,
(b)
,
(d)
and
(e)
, Stats., the Pharmacy Examining Board will hold a public hearing at the time and place indicated below to consider an order to amend sections
Phar 6.08
,
7.12 (2) (f)
and
8.12 (2) (b)
, relating to security systems, utilization reviews, and prescription orders transmitted by facsimile.
Hearing Information
Date:
December 2, 2009
Time:
9:30 a.m.
Location:
1400 East Washington Avenue
(Enter at 55 North Dickinson Street)
Room 121A
Madison, Wisconsin
Appearances at the Hearing and Submission 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 Pamela Haack, Paralegal, Department of Regulation and Licensing, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email to
pamela.haack@wisconsin.gov
. Comments must be received on or before December 2, 2009, to be included in the record of rule-making proceedings.
Copies of Proposed Rule
Copies of this proposed rule are available upon request to Pamela Haack, 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
pamela.haack@wisconsin.gov
.
Analysis Prepared by the Department of Regulation and Licensing
Statutes interpreted
Statutory authority
Explanation of agency authority
The Pharmacy Examining Board has the authority under s.
450.02 (3) (d)
, Stats., to promulgate rules necessary for the administration of ch.
450
, Stats., and under s.
450.02 (3) (a)
to
(c)
, Stats., relating to the distribution and dispensing of drugs; establishment of security standards for pharmacies, and establishment of minimum standards for the practice of pharmacy.
Related statute or rule
There are no other statutes or rules other than those listed above.
Plain language analysis
SECTION 1 amends s.
Phar 6.08
to clarify that a pharmacy is required to have a centrally monitored alarm system. The current rules permit a pharmacy to have an alarm system in the immediate physical structure within which a pharmacy is located.
SECTION 2 amends s.
Phar 7.12 (2) (f)
to clarify that the reference to "drug initialization" used in the rule should read "drug utilization."
SECTION 3 amends s.
Phar 8.12 (2) (b)
to clarify that prescription orders may be transmitted by a facsimile machine in instances in which a patient "meets the eligibility requirements for placement in a long term care facility," but elects to reside at home. Under the current rules a pharmacist may not dispense a schedule II controlled substance pursuant to a prescription order transmitted by a facsimile machine unless certain conditions stated in s.
Phar 8.12 (1)
are satisfied and all the conditions set forth in s.
Phar 8.12 (2) (a)
to
(c)
are met.
Comparison with federal regulations
There is no existing or proposed federal regulation.
Comparison with rules in adjacent states
Illinois:
Pharmacy Alarms, Security.
Section 1330.75 Security Requirements. a) Whenever the pharmacy (prescription area) is not occupied by a registrant, the pharmacy (prescription area) must be secured and inaccessible to non-licensed persons (employees and public). This may be accomplished by measures such as walling off, locking doors, and electronic security equipment, as approved by the Division.
Utilization Review.
Not applicable. Rule corrects a drafting error.
Faxing Schedule II Controlled Substance Prescriptions.
Neither the statutes nor rules establish prima facie permission for pharmacists to dispense schedule II controlled substances faxed by a practitioner on behalf of patients residing in-home that are eligible for nursing home placement.
Iowa:
Pharmacy Alarms, Security.
657—6.7(124,155A) Security. While on duty, each pharmacist shall be responsible for the security of the prescription department, including provisions for effective control against theft of, diversion of, or unauthorized access to prescription drugs, records for such drugs, and patient records as provided in 657—Chapter
21
.
6.7(1) Department locked. The prescription department shall be locked by key or combination so as to prevent access when a pharmacist is not on site except as provided in subrule 6.7(2).
6.7(2) Temporary absence of pharmacist. In the temporary absence of the pharmacist, only the pharmacist in charge may designate persons who may be present in the prescription department to perform technical and nontechnical functions designated by the pharmacist in charge. Activities identified in subrule 6.7(3) may not be performed during such temporary absence of the pharmacist. A temporary absence is an absence of short duration not to exceed two hours. In the absence of the pharmacist, the pharmacy shall notify the public that the pharmacist is temporarily absent and that no prescriptions will be dispensed until the pharmacist returns.
8.5(3) Secure barrier. The pharmacy department shall be surrounded by a physical barrier capable of being securely locked to prevent entry when the department is closed. A secure barrier may be constructed of other than a solid material with a continuous surface if the openings in the material are not large enough to permit removal of items from the pharmacy department by any means. Any material used in the construction of the barrier shall be sufficient strength and thickness that it cannot be readily or easily removed, penetrated, or bent. The plans and specifications of the barrier shall be submitted to the board for approval prior to the start of construction. The board may also require on-site inspection of the facility or pharmacy department prior to the pharmacy's opening or relocation. The pharmacy department shall be closed and secured in the absence of the pharmacist except as provided in rule 657—6.7(124,155A) or 657—7.6(124,155A). [4/4/2007]
Utilization Review.
Not applicable. Rule corrects a drafting error.
Faxing Schedule II Controlled Substance Prescriptions.
Neither the statutes nor rules establish prima facie permission for pharmacists to dispense schedule II controlled substances faxed by a practitioner on behalf of patients residing in-home that are eligible for nursing home placement.
Michigan:
Pharmacy Alarms, Security.
R 338.482 Housing of pharmacy.
(3) All pharmacies that occupy less than the entire area of the premises owned, leased, used, or controlled by the licensee shall be permanently enclosed by partitions from the floor to the ceiling. All partitions shall be of substantial construction and shall be securely lockable so that drugs and devices that can only be sold by a pharmacist are unobtainable during the absence of the pharmacist. Identification of this department by the use of the words "drug," "medicines," or "pharmacy" or by the use of a similar term or combination of terms shall be restricted to the area that is registered by the board. The pharmacy department shall be locked when the pharmacist is not in the establishment.
Utilization Review.
Not applicable. Rule corrects a drafting error.
Faxing Schedule II Controlled Substance Prescriptions.
Neither the statutes nor rules establish prima facie permission for pharmacists to dispense schedule II controlled substances faxed by a practitioner on behalf of patients residing in-home that are eligible for nursing home placement.
Minnesota:
Pharmacy Alarms, Security.
6800.0700 PHARMACY, SPACE, AND SECURITY.
Subpart 1 D. The pharmacy must be surrounded by a continuous partition or wall extending from the floor to the permanent ceiling, containing doors capable of being securely locked to prevent entry when the pharmacy is closed.
Utilization Review.
Not applicable. Rule corrects a drafting error.
Faxing Schedule II Controlled Substance Prescriptions.
Neither the statutes nor rules establish prima facie permission for pharmacists to dispense schedule II controlled substances faxed by a practitioner on behalf of patients residing in-home that are eligible for nursing home placement.
Summary of factual data and analytical methodologies
:
The board recognized the need to tighten security requirements so that all pharmacies, even if they are located within a larger structure that is alarmed, would be equipped with an alarm. The board was contacted about the barriers to providing care to long term pharmacy care patients who receive care at home. As a result of a subsequent discussion during a board meeting, the board decided to change its controlled substances faxing rule.
Analysis and supporting documents used to determine effect on small business
Requiring all pharmacies to be alarmed may have an impact on small businesses, but its primary impact is on chain or hospital pharmacies that are more typically inside a larger structure. The faxing change will assist small businesses in providing care to long term care patients at home.
Section
227.137
, Stats., requires an "agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an "agency" in this section.
Small Business Impact
These proposed rules were reviewed and discussed by the department's Small Business Review Advisory Committee which determined that the rules will have no 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
hector.colon@wisconsin.gov
, or by calling 608-266-8608.
Fiscal Estimate
Summary
The department estimates that this rule will require staff time in the Division of Professional Credentialing. The total one-time salary and fringe costs are estimated at $266.
Anticipated costs incurred by private sector
The department finds that this rule has no significant fiscal effect on the private sector.
Agency Contact Person
Pamela Haack, Paralegal, Department of Regulation and Licensing, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708; telephone 608-266-0495; email at
pamela.haack@wisconsin.gov
.
Notice of Hearing
Pharmacy Examining Board
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Pharmacy Examining Board in ss.
15.08 (5) (b)
,
227.11 (2)
,
450.02 (3) (d)
and
450.062
, Stats., the Pharmacy Examining Board will hold a public hearing at the time and place indicated below to consider an order to create section
Phar 7.095
, relating to remote dispensing sites.
Hearing Information
Date:
December 2, 2009
Time:
9:30 a.m.
Location:
1400 East Washington Avenue
(Enter at 55 North Dickinson Street)
Room 121A
Madison, Wisconsin
Appearances at the Hearing and Submission 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 Pamela Haack, Paralegal, Department of Regulation and Licensing, Division of Board Services, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, WI 53708-8935, or by email to
pamela.haack@ wisconsin.gov
. Comments must be received on or before December 2, 2009, to be included in the record of rule-making proceedings.
Copies of Proposed Rule
Copies of this proposed rule are available upon request to Pamela Haack, 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
pamela.haack@wisconsin.gov
.
Analysis Prepared by Department of Regulation and Licensing
Statutes interpreted
Statutory authority
Explanation of agency authority
The board is authorized under s.
450.02 (3) (d)
, Stats., to promulgate rules necessary for the administration of ch.
450
, Stats., and under s.
450.062
, Stats., to promulgate rules relating to the establishment and operation of remote dispensing sites.
Related statute or rule
Section
Phar 7.09
relates to the use of automated dispensing systems.
Plain language analysis
SECTION 1 creates s.
Phar 7.095
, which sets forth the process and procedures for establishing and operating remote dispensing sites.
As stated in s.
450.06 (1)
, Stats., except as provided in rules adopted by the board under s.
450.062
, Stats., no pharmacist may dispense at any location that is not licensed as a pharmacy by the board. The board is proposing to adopt these rules to set forth the process and procedures for establishing and operating remote dispensing sites.
The proposed rules include definitions for "health care facility," "managing pharmacist," "practitioner," "remote dispensing site," and "supervising pharmacy." The proposed rules also clarify that a remote dispensing site shall not be licensed as a pharmacy and that no person may use or display certain titles in connection with the operation of a remote dispensing site. In addition, the proposed rules identify where remote dispensing sites may be located; the requirements for operating remote dispensing sites; the requirements for dispensing; the responsibilities of managing pharmacists, and the requirements for pharmacy technicians and interns.
Comparison with federal regulations
There is no existing or proposed federal regulation.
Comparison with rules in adjacent states
Illinois:
Statutes: Section 225 ILCS 85
Rules: Section 1330.98
Illinois' statutes provide a significant amount of detail as to tele-pharmacy, remote prescription processing, common electronic filing, automated dispensing and storage systems, and centralized prescription filling. Tele-pharmacy is included as part of the definition of the practice of pharmacy. Tele-pharmacy models must meet a set of conditions regarding pharmacist responsibility, technician training, supervision and patient counseling. Remote prescription processing, or "outsourcing" occurs when at least one of eight listed functions are identified. Conditions under which remote prescription processing may occur are also specified, including ownership, electronic filing and record maintenance provisions. The statutes are very detailed regarding automated pharmacy systems/remote dispensing. Subjects covered include: security; procedures; confidentiality; designated personnel; storage (temperature, proper containers, handling outdated drugs), dispensing and delivery, home pharmacy supervision and re-stocking of systems that use removable cartridges. The rules provide additional detail for automated dispensing and storage systems, including provisions relating to documentation, storage, security, record keeping, stocking, proper containers, and quality assurance.
Iowa:
Rules: Chapters
9
and
18
.
Chapter
9
of Iowa's rules relates to automated medication dispensing systems, including: pharmacist responsibilities; quality assurance; policies and procedures; system, site and process requirements; dispensing and distributing; security and confidentiality; records; error identification and logging; verification and accuracy; reporting; and outpatient automated medication dispensing. Chapter
18
addresses centralized filling and processing, including: system qualifications; labeling; legal compliance; patient notification; originating pharmacy compliance; policies and procedures; and records.
Michigan:
Statutes: Section
333.17753
, Michigan Public Health Code
Michigan's statutes include a section on centralized prescription filling, which lists the record-keeping, security and quality improvement conditions that apply to outsourcing. The rules state that a license is required at each separate location where drugs are prepared or dispensed.
Minnesota:
Rules: Section 6800.0800, 2600, 4075, 6600
Minnesota's statutes define central service pharmacy as a pharmacy that may provide dispensing functions, drug utilization review, packaging, labeling, or delivery of a prescription product to another pharmacy for the purpose of filling a prescription. Minnesota's rules provide definitions for community and hospital satellite pharmacies. Plans for satellite pharmacies must be submitted to the board for approval. The rules also specify the requirements for vending machines (responsibility, policies and procedures), centralized processing and filling (ownership, filing, policy and procedures manual, records, tracking of drugs, security, quality improvement, counseling and notification), and freedom of choice.
Summary of factual data and analytical methodologies
The board created a committee to draft remote dispensing guidelines after
2007 Wisconsin Act 202
(Senate Bill 409) became effective. The committee met once and devised several safeguards to protect the public. Since the remote dispensing model departs from the traditional dispensing model, the board sought to address drug security, training and supervision of remote site staff, privacy, labeling and quality assurance in the context of remote site dispensing. The final guidelines, which have been written into this rule draft, are the result of committee discussions and recommendations that were finalized by the full board.
Analysis and supporting documents used to determine effect on small business
This rule will have an impact on small businesses, though it is not clear exactly what impact it will have. The board received correspondence expressing concerns and suggesting that the remote sites will adversely impact chain and independent pharmacies in the region, making it more difficult to compete. One pharmacy owner suggested protective language in the remote dispensing rules that would disallow remote sites within a pre-determined radius of existing pharmacies. The board took up the concerns at its July 22, 2009 meeting and deliberated on the benefits and costs of the legislation, noting that its primary purpose is to increase access to prescription drugs. The board also noted that small business concerns were heard while the legislation was pending, resulting in Amendment 1 to Senate Bill 409, which limited remote dispensing to sites specifically identified in the legislation. It was noted in testimony that there is a likelihood that small businesses will benefit from new ventures with clinics and practitioners. The board also considered other possibilities, such as improved care coordination and the increased likelihood of patients to fill prescriptions at a remote site located at a health clinic.
Section
227.137
, Stats., requires an "agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an "agency" in this section.
Small Business Impact
These proposed rules were reviewed and discussed by the department's Small Business Review Advisory Committee which determined that these rules will have no significant economic impact on a substantial number of small businesses, as defined in s.
227.114 (1)
, Stats.
Fiscal Estimate
Summary
The department estimates that this rule will require staff time in the Division of Board Services. The total on-going salary and fringe costs are estimated at $7,100.
Anticipated costs incurred by private sector
The department finds that this rule has no significant fiscal effect on the private sector.
Agency Contact Person
Pamela Haack, Paralegal, Department of Regulation and Licensing, Division of Board Services, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708; telephone 608-266-0495; email at
pamela.haack@wisconsin.gov
.
Notice of Hearing
Public Defender Board
NOTICE IS HEREBY GIVEN that pursuant to ss.
977.02 (5)
,
(6)
and
(8)
, and
977.03 (3)
, Stats., the State Public Defender (SPD) will hold a public hearing to consider a proposed order to revise Chapter
PD 1
, relating to the certification of private bar attorneys to accept appointments to provide legal representation for state public defender clients.
Hearing Information
SPD will hold a public hearing at the time and place shown below.
November 30, 2009
1:00 pm to 3:00 pm
SPD Administrative Office, Banoul Conference Room
315 N. Henry Street, 2
nd
Floor
Madison, Wisconsin 53703
Handicap accessibility is in the rear of the building. If you require communication accommodation at the hearing, please call Marla Stephens, (414) 227-4891, at least 10 days prior to the hearing date.
Appearances at Hearing and Submission of Written Comments
Interested persons are invited to attend the hearing and comment on the proposed rule. Persons appearing may make an oral presentation and are requested to submit their comments in writing. Written comments on the proposed rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by Monday, December 7, 2009. Written comments should be addressed to: Marla Stephens, SPD, PO Box 7923, Madison, WI 53707-7923, or by email:
stephensm@opd.wi.gov
.
Copies of Proposed Rule
To view the proposed rule and certification application forms online, go to:
http://www.wisspd.org/html/appellate/
PropPD1.asp
. You may contact Marla Stephens at
stephensm@opd.wi.gov
or by telephone at (414) 227-4891 to request a copy of the proposed rule and certification application forms be sent to you by U.S. mail. Copies of the rule and certification application forms will also be available at the hearing.
Analysis Prepared by the State Public Defender Board
Statutes interpreted
Statutory authority
Explanation of Agency Authority
Sections
977.05 (4)
and
(5)
and
977.08 (1)
require the state public defender to appoint attorneys to represent indigent clients in specified cases. Section
977.08 (2)
and
(3)
require the state public defender to notify all attorneys that they may be appointed to provide legal representation to state public defender clients, to review the qualifications of attorneys seeking appointment, and to certify lists of attorneys qualified to accept appointments. Section
977.02 (5)
allows the state public defender board to promulgate rules that establish procedures to assure that the legal representation of indigent clients by the private bar at the initial stages of cases assigned under ch.
977
is at the same level as the representation provided by the state public defender. Section
977.02 (6)
allows the state public defender board to establish rules to accommodate the handling of certain potential conflict of interest cases by the office of the state public defender. Section
977.03 (3)
allows the state public defender board to promulgate rules to establish procedures under which the state public defender may appoint attorneys based upon the state public defender's evaluation of the attorneys' performance. Section
977.02 (8)
allows the state public defender board to perform all other duties necessary and incidental to the performance of any duty enumerated in ch.
977
, Stats.
Related statute or rule
None
Plain language analysis
The ethical rules in Supreme Court Rules Chap. 20, Rules of Professional Conduct for Attorneys, prohibit conflicts of interest and require zealous representation. Consequently, the state public defender appoints some cases to private attorneys who are not employees. Because the state public defender does not have direct oversight of the legal representation provided in these cases, the state public defender uses other means, including certification lists, to ensure that the private attorneys are competent to represent clients in different types of cases. The proposed rules modify certification criteria and procedures to:
•
Update the certification lists to reflect changes in substantive and procedural law.
•
Permit the state public defender to exercise discretion to certify, recertify, sanction, suspend, caution, place conditions upon or decertify a private attorney for cause.
•
Establish criteria for the exercise of discretion.
•
Permit the state public defender to consider an attorney's prior disciplinary record and other conduct, in addition to experience and education, when making certification decisions.
•
Require an attorney to reapply for certification after decertification or voluntary removal from any certification list.
•
Permit the state public defender to require a period of provisional certification to allow the state public defender to monitor the representation provided to clients.
•
Permit the state public defender to suspend case appointments to an attorney pending an investigation into performance or billing.
•
Permit the state public defender to disclose information about an investigation after the investigation is concluded.
Comparison with federal regulations
There are no existing or proposed federal regulations that address the activities of the proposed rules.
Comparison with rules in adjacent states
Iowa:
Appointment:
Appellate courts appoint the State Appellate Defender. At the trial court level, the State Public Defender files a notice with a district court clerk in each county served by the public defender designating which local public defender office shall receive notice of appointment of cases. This designee shall be appointed by the court to represent all the eligible indigents in all of the cases and proceedings specified in the designation. The State Public Defender may notify the trial court that the public defender designee will not provide legal representation in certain cases. The State Public Defender may contract with private attorneys and nonprofit organizations for the provision of legal services to indigent persons.
Certification/Standards for Private Attorneys:
The State Public Defender may confer with judges, attorneys and others having knowledge about the attorney's competence, effectiveness, trustworthiness and ability to provide services. Also, the State Public Defender may conduct additional investigation as deemed warranted. The information received may be considered when deciding to award an initial contract or renew a contract for legal services with a private attorney.
Illinois:
Appointment:
Appeals are appointed by the appellate court to the State Appellate Defender. Trial court judges appoint the local public defender office.
Certification/Standards for Private Attorneys:
Appellate cases: An attorney licensed to practice law in Illinois who has prior criminal appellate experience or an attorney who is a member or employee of a law firm which has at least one member with that experience may submit a bid to the State Appellate Defender to receive cases. Prospective bidders must furnish legal writing samples that are deemed acceptable to the State Appellate Defender. Trial cases: No written qualifications and standards or on-going legal education requirements were found.
Michigan:
Appointment:
Appellate courts determine eligibility and appoint the State Appellate Defender Office to cases. The trial courts determine eligibility and appoint local public defense agencies to represent the indigent.
Certification/Standards for Private Attorneys:
The State Appellate Defender Office has initial qualification requirements and on-going training requirements. The trial courts vary by county as to qualifications and on-going training requirements. For example, Wayne County (Detroit) appoints the Legal Aid and Defender of Detroit and does not appear to have published qualification standards or on-going training requirements for private attorneys who wish to be appointed to public defender cases. Oakland County (Pontiac) inquires about criminal law experience and education and requests the names of judges and attorneys for references as part of the initial qualification. Also, Oakland County requires private attorneys to agree to attend on-going training related to criminal law. Macomb County (Mt. Clemons) has an Indigent Assignment List Selection Committee that reviews attorney applications and assigns attorneys to a level. An attorney must apply to this Committee to move to a higher level. Also, Macomb County requires annual training of one continuing legal education credit or three mini-seminars relating to criminal law.
Minnesota:
Appointment:
The trial and appellate courts appoint cases. The trial court judge appoints the district public defenders' offices in the jurisdiction in which the charge is filed. There are ten judicial districts in Minnesota. The district public defender cannot be required to make the eligibility determination or investigate the availability of assets. If a conflict of interest or other situation exists, the court can appoint to private attorneys who have contracts for appointments with the district public defender's office.
Certification/Standards for Private Attorneys:
The Chief Public Defender in each of the districts reviews the qualifications of a private attorney who applies for a contract to accept appointments of public defender cases. There are no published standards for that review.
Summary of factual data and analytical methodologies
None.
Analysis and supporting documents used to determine effect on small business
None.
Small Business Impact
None.
Fiscal Estimate
No fiscal estimate is required.
Agency Contact Person
Marla Stephens
315 N. Henry Street, 2
nd
Floor
P.O. Box 7923, Madison, Wisconsin 53707-7923
Phone: 414.227.4891
Notice of Hearing
Public Defender Board
NOTICE IS HEREBY GIVEN that pursuant to ss.
51.60
,
51.605
,
55.105
,
55.107
,
977.02 (2m)
,
(3)
,
(4m)
and
(4r)
, and
977.075
Stats., the State Public Defender (SPD) will hold a public hearing to consider the proposed order to revise Chapters
PD 2
,
3
, and
6
, relating to representation by the state public defender of persons detained under Ch.
51
or
55
, Stats., or subject to involuntary administration of psychotropic medication without a predetermination of financial eligibility.
Hearing Information
SPD will hold a public hearing at the time and place shown below.
November 30, 2009
10:00 a.m. to Noon
SPD Administrative Office, Banoul Conference Room
315 N. Henry Street, 2
nd
Floor
Madison, Wisconsin 53703
Handicap accessibility is in the rear of the building. If you require communication accommodation at the hearing, please call Marla Stephens, (414) 227-4891, at least 10 days prior to the hearing date.
Appearances at Hearing and Submission of Written Comments
Interested persons are invited to attend the hearing and comment on the proposed rule. Persons appearing may make an oral presentation and are requested to submit their comments in writing. Written comments on the proposed rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by Monday, December 7, 2009. Written comments should be addressed to: Marla Stephens, SPD, PO Box 7923, Madison, WI 53707-7923, or by email:
stephensm@opd.wi.gov
.
Copies of Proposed Rule
Analysis Prepared by the State Public Defender Board
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
977.02 (2m)
allows the state public defender board to promulgate rules regarding eligibility for legal services for persons who are entitled to be represented by counsel without a determination of indigency. Sections
977.02 (4m)
and
977.075
allow for the state public defender board to establish rules setting the maximum amount a person subject to 51.605 or 55.107 must pay as reimbursement for legal services. Section
977.02 (4r)
allows the state public defender board to promulgate rules that establish procedures to provide the department of administration with any information concerning collection of payments.
Related statute or rule
The proposed rules implement statutory changes relating to the appointment of counsel without a determination of indigency and the payment for representation in chapter 51 and 55 cases. Similar statutes include ss.
48.23 (4)
and
938.23 (4)
relating to the appointment of counsel in juvenile cases without a determination of indigency. Other similar statutes and rules include ss.
48.275
,
938.275
and
977.075
and chapter PD 6 related to the payment for representation in chapter 48 and 938 cases.
Plain language analysis
The proposed rules implement the statutory changes that became effective July 1, 2008, affecting the state public defender's office in proceedings under chapters 51 and 55, Stats. The specific actions proposed include:
•
Removing the requirement of a finding of financial eligibility by the state public defender before legal counsel is appointed for chapter 51 and 55 clients
•
Removing the client's prepayment options for chapter 51 and 55 case types
•
Creating a new rule for reimbursement rates for chapter 51 and 55 case types
•
Requiring reports to the legislature's joint committee on finance and the department of administration regarding the collection of payments ordered under chapter 51 and 55
2007 Wisconsin Act 20
removed the requirement that persons subject to the civil commitment proceedings of chapters 51 or 55 complete a pre-representation indigency evaluation and required the public defender to appoint counsel without a determination of indigency. At the conclusion of the proceeding, the circuit court may inquire as to the person's ability to reimburse the state for the cost of representation. If the court determines that the person is able to reimburse the costs of representation, the court may order reimbursement in an amount not to exceed the maximum amount established by the public defender board, currently in Wisconsin Administrative Code PD 6.01. The court may require the public defender to conduct a determination of indigency and report the results of that determination to the court.
Any reimbursement is made to the clerk of courts for the county where the proceedings took place. The clerk of each county deposits 25% of the reimbursement payments to the county treasury and transmits the remaining 75% to the secretary of the department of administration to be credited in the public defender's private bar and investigator reimbursement appropriation. The clerks of court for each county are required to report to the public defender by January 31 the total amounts of court-ordered reimbursement ordered and paid under chapters 51 and 55 for the previous calendar year. The effective date of these statutory provisions is July 1, 2008.
Comparison with federal regulations
There are no existing or proposed federal regulations that address the activities of the proposed rules.
Comparisons with rules in adjacent states
For all adjacent states to Wisconsin, if neither the respondent nor others provide counsel for a civil commitment hearing, the respective court appoints counsel for him or her. To compensate the attorneys for their services in the states of Minnesota, Iowa, and Illinois, the applicable court enters an order upon the county to pay the entire fee or such an amount as the respondent is unable to pay. In Michigan, the court compensates appointed counsel from court funds in an amount that is reasonable and based upon time and expenses.
Summary of factual data and analytical methodologies
The proposed rules implement statutory changes that went into effect on July 1, 2008.
Analysis and supporting documents used to determine effect on small business
None.
Small Business Impact
None.
Fiscal Estimate
Summary
These administrative rules conform to statutory changes that took effect on July 1, 2008, having been implemented as part of the State's 2007-09 biennial budget act. The rules will not have any fiscal effect independent of these statutory changes. The statutory changes eliminated the requirement that a respondent in a chapter 51 proceeding or a chapter 55 proceeding complete a financial application before qualifying for representation through the State Public Defender (SPD).
The estimated fiscal effect of the legislation was summarized in the Legislative Fiscal Bureau's Paper Number 621 (May 8, 2007). This paper (at p. 5) reviewed the average cost for chapter 51 and chapter 55 cases and the estimated number of additional cases under these chapters in which the SPD would appoint an attorney. The estimated annual cost to the SPD was $320,500, the amount by which the SPD's budget was increased beginning in fiscal year 2008-2009.
State fiscal effect
None.
Local government fiscal effect
None.
Private sector fiscal effect
None.
Long-range fiscal implications
As noted above, the fiscal effect stems from the statutory changes, not from the administrative rules. The two major factors that may affect the SPD's costs from the statutory changes are 1) the number of chapter 51 and chapter 55 cases and 2) the average costs of providing representation in these cases.
Agency Contact Person
Marla Stephens
315 N. Henry Street, 2
nd
Floor
P.O. Box 7923, Madison, Wisconsin 53707-7923
Phone: 414.227.4891
Notice of Hearing
Public Instruction
NOTICE IS HEREBY GIVEN that pursuant to ss.
119.23 (2) (a) 6. c.
and
227.11 (2) (a)
, Stats., the Department of Public Instruction will hold a public hearing as follows to consider proposed permanent rules to create section
PI 35.07
, relating to establishing a nonrenewable waiver from the requirement that a teacher have a bachelor's degree in order to teach in a private school under the Milwaukee Parental Choice Program.
Hearing Information
The hearing will be held as follows:
December 8, 2009
Milwaukee
4:30 – 6:00 p.m.
Hope Christian School — Fortis
3601 North Port Washington Ave.
Room 207
The hearing site is fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call Robert Soldner, Director, School Management Services, (608) 266-7475 or leave a message with the Teletypewriter (TTY) at (608) 267-2427 at least 10 days prior to the hearing date. Reasonable accommodation includes materials prepared in an alternative format, as provided under the Americans with Disabilities Act.
Copies of Proposed Rule
Lori Slauson, Administrative Rules and Federal Grants Coordinator
Department of Public Instruction
125 South Webster Street
P.O. Box 7841
Madison, WI 53707
Submission of Written Comments
Written comments on the proposed rules received by Ms. Slauson at the above mail or email address no later than December 14, 2009, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by Department of Public Instruction
Statute interpreted
Statutory authority
Explanation of agency authority
Section
119.23 (2) (a) 6. c.
, Stats., requires the department to, by rule, implement a process to issue a temporary, nonrenewable waiver to certain teachers that meet specific statutory requirements and who are employed by a private school participating in the Milwaukee Parental Choice Program (MPCP) program.
Section
119.23 (11)
, Stats., requires the department to promulgate rules to implement and administer the MPCP.
Section
227.11 (2) (a)
, Stats., gives an agency rule-making authority to interpret the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute.
SECTION 9139 (4r) of the nonstatutory provisions of
2009 Wisconsin Act 28
, requires the department to, no later than the first day of the 4
th
month beginning after the effective date of the Act (October 1, 2009), submit proposed rules to the Legislative Council staff.
Related statute or rule
N/A
Plain language analysis
2009 Wisconsin Act 28
, the 2009-11 biennial budget bill, made several modifications to the Milwaukee Parental Choice Program under s.
119.23
, Stats. Several of the modifications require that the department develop rules to implement the statutory provisions. One of those modifications requires the department to develop a rule setting forth the process to issue a temporary, nonrenewable waiver for eligible teachers who have been teaching in a participating private school for at least 5 consecutive years immediately preceding July 1, 2010, but do not have a bachelor's degree.
By statute, a teacher may apply for a temporary, nonrenewable waiver if he or she:
•
Was employed by the private school participating in the Milwaukee Parental Choice Program (MPCP) on July 1, 2010,
•
Has been teaching for at least the 5 consecutive years immediately preceding July 1, 2010, and
•
Does not have a bachelor's degree from an accredited institution of higher education on July 1, 2010.
The statutes further require the applicant to submit to the department a waiver application designed by the department and a plan for satisfying the requirements under s.
119.23 (2) (a) 6. a.
, Stats., including the name of the accredited institution of higher education at which the teacher is pursuing or will pursue the bachelor's degree and the anticipated date on which the teacher expects to complete the bachelor's degree.
The rules include the statutory requirements described above and establish the process for requesting the temporary, nonrenewable waiver. The rules require specific information to be submitted by July 31, 2010, when applying for the waiver, including:
•
Information documenting that the institution of higher education is accredited.
•
The name and contact information of the accredited institution of higher learning.
•
A list of specific classes to be taken to complete the bachelor's degree.
•
If applicable, an official transcript showing courses already completed that count toward the bachelor's degree.
•
Information demonstrating a bachelor's degree from the accredited institution of higher education can be issued within five years under the plan proposed by the applicant.
Finally, no waiver granted under these rules is valid after July 31, 2015.
The Act requires the permanent rules to be submitted to the Legislative Council by October 1, 2009.
Comparison with federal regulations
N/A
Comparison with rules in adjacent states
Illinois, Iowa, Michigan, and Minnesota do not have rules relating to private school voucher programs.
Summary of factual data and analytical methodologies
The waiver granted under these rules is only available to teachers that meet the requirements on July 1, 2010 and valid until July 31, 2015. The information required in the rule is typical of information requested from regular teachers in determining whether they are on-track to receiving proper certification.
Analysis and supporting documents used to determine effect on small business
N/A
Small Business Impact
The proposed rules will have no significant economic impact on small businesses, as defined in s.
227.114 (1) (a)
, Stats.
Fiscal Estimate
Summary
The rule sets forth the process to issue a temporary, nonrenewable waiver for eligible teachers who have been teaching in a participating private school but do not meet the new licensing requirement created by
2009 Wis. Act 28
under s.
119.23 (2) (a) 6.
a, Stats.
The rules will have no local fiscal effect and will have no significant economic impact on small businesses, as defined in s.
227.114 (1) (a)
, Stats.
The costs associated with the new waiver application process and review will be absorbed by the department.
Anticipated costs incurred by private sector
N/A
Agency Contact Person
Robert Soldner, Director
School Management Services
(608) 266-7475
Notice of Hearing
Public Service Commission
NOTICE IS GIVEN that pursuant to s.
227.16 (2) (b)
, Stats., the Commission will hold a public hearing on a proposed rule to create Chapter
PSC 172
related to the police and fire protection fee created under
2009 Wisconsin Act 28
.
Hearing Information
Date:
|
December 2, 2009
Wednesday — 1:30 p.m.
|
Location:
|
Amnicon Falls Hearing Room
Public Service Commission Bldg.
610 North Whitney Way
Madison, WI
|
Accommodation
This building is accessible to people in wheelchairs through the Whitney Way (lobby) entrance. Handicapped parking is available on the south side of the building.
The Commission does not discriminate on the basis of disability in the provision of programs, services, or employment. Any person with a disability who needs accommodations to participate in this proceeding or who needs to obtain this document in a different format should contact Dennis Klaila, Docket Coordinator, at (608) 267-9780 or
dennis.klaila@psc.state.wi.us
.
Submission of Written Comments
Any person may submit written comments on these proposed rules. The hearing record will be open for written comments from the public, effective immediately, and until
Tuesday December 15, 2009
, at noon (
Monday December 14, 2009
, at noon, if filed by fax). All written comments must include a reference on the filing to docket 1-AC-228. File by one mode only.
Industry:
File comments using the Electronic Regulatory Filing system. This may be accessed from the Commission's website psc.wi.gov.
Members of the Public:
If filing electronically
: Use the Public Comments system or the Electronic Regulatory Filing system. Both of these may be accessed from the Commission's website: psc.wi.gov.
If filing by mail, courier, or hand delivery
: Address as shown in the box below.
If filing by fax
: Send fax comments to (608) 266-3957. Fax filing
cover
sheet MUST state "Official Filing," the docket number 1-AC-228, and the number of pages (limited to 25 pages for fax comments).
Comments Due:
Tuesday
December 15, 2009 Noon
FAX Due:
Monday
December 14, 2009 Noon
|
Address Comments to:
Sandra J. Paske
Secretary to the Commission
Public Service Commission
P.O. Box 7854
Madison, WI 53707-7854
FAX (608) 266-3957
|
Agency Contact Information
Media questions should be directed to Tim LeMonds, Director of Governmental and Public Affairs at (608) 266-9600.
Hearing or speech-impaired individuals may also use the Commission's TTY number, if calling from Wisconsin (800) 251-8345, if calling from outside Wisconsin (608) 267-1479.
Analysis Prepared by the Public Service Commission of Wisconsin
Statute interpreted
This rule interprets s.
196.025 (6)
, Stats., which imposes a police and fire protection fee on communications service connections.
Statutory authority
Explanation of agency authority
Section
227.11
, Stats., authorizes agencies to promulgate administrative rules. Section
196.02 (1)
, Stats., authorizes the Commission to do all things necessary and convenient to its jurisdiction. Section
196.02 (3)
, Stats., grants the Commission specific authority to promulgate rules. Section
196.025 (6) (d) 1.
, Stats., allows the Commission to promulgate rules about the new police and fire protection fee.
Related statutes or rules
Sections
77.59 (1)
to
(5)
,
(5m)
except any penalty or interest provision, (6) (a), (8) and (8m) describe department of revenue audit and appeal procedures.
Summary of rule
This rule deals with the new police and fire protection fee. It establishes the requirements for administering the fee.
The rule states that a fee must be assessed on all retail voice communications connections including voice over internet protocol, except that no fee should be assessed on lines used internally by a communications provider, by the federal government or by tribal governments. Anyone required to assess the fee must register with the Department of Revenue (DOR), which will be collecting the fee.
For communications connections under a subscription plan (one with regularly occurring payments scheduled), the provider is required to assess 75 cents per connection, per month. If a partial month of service is provided, then the provider is to follow the same procedure it uses with county 911 fees. If the provider does not assess those fees, then it can charge the full fee amount unless its billing system can prorate it. If a customer has more than 10 connections from a particular provider, each connection above 10 is assessed .075 cents per connection, per month. If only a partial payment is received from a customer, the payment is first applied to the provider's charges. Providers must explain the fee on the first bill on which it appears and, if it is listed separately on the bill, must identify the bill in a manner specified in the statute and in the rule.
For prepaid wireless communications connections, the provider or retailer that sells the plan must assess 38 cents per connection sold in retail sales transactions. Retail sales transactions involving prepaid wireless include the sale of a phone and airtime, as well as sales of additional airtime. Whether the source of the sale is Wisconsin is determined using a hierarchy similar to that used for sales tax purposes.
Returns must be filed with the DOR. Fees imposed during one month must be paid to DOR by the end of the following month. Extensions may be granted for good cause. Fees written off as uncollectible and those repaid when an item is returned may be deducted from a later return.
Appeals about amounts due or refunds must be filed with DOR within 60 days of the date on which a notice of amount due, notice of refund, or notice of refund claim denial is received. A request for a redetermination must be filed with DOR as well. If the communications provider or retailer wishes to pursue its appeal further, it must file an objection to the assessment with the commission, which will follow a process similar to that in s.
PSC 196.85
, Stats., which deals with objections to other PSC assessments.
Resellers are required to file a form with their underlying local exchange carrier certifying that the lines they have purchased will be resold. This ensures that the local exchange carrier is not held responsible for submitting fees on those lines.
Providers and retailers are required to keep records about fee assessment. DOR and the commission can audit for compliance and the commission can bring an action for uncollected fees.
Comparison with federal regulations
The Commission is not aware of any existing or proposed federal legislation on this matter.
Comparison with rules in adjacent states
The Commission is not aware of any similar rules in surrounding states.
Summary of factual data and analytical methodologies
The Commission and the DOR worked together to develop this rule. The current processes used by DOR for the collection of sales and other taxes were considered while developing this rule.
Analysis and supporting documents used to determine effect on small business
The Commission and DOR worked together to develop this rule. The steps taken by DOR to reduce the burden of tax filings on small businesses were taken into account when drafting this rule.
Small Business Impact
While the statute creating this fee and this rule will affect small businesses to some degree, the Commission is unable to estimate the number because the statute and rule apply to all telecommunications providers and to retailers that sell prepaid wireless telecommunications plans. Since the Commission does not regulate wireless telecommunications providers or retail sellers of wireless services, it does not have the data necessary to determine whether those are small businesses. However, the Commission and the Department of Revenue (DOR) worked together to develop this rule. The steps taken by DOR to reduce the burden of tax filings on small businesses were taken into account when drafting this rule.
Fiscal Estimate
Summary
Section
196.025 (6)
, Stats., and thus this rule implementing it, has a fiscal impact as it will increase costs to businesses and government, although it may be possible to absorb them. The fee created by the statute will be billed to each government and business customer according to a formula based on the number of lines of service they have in groupings of 10. For government, the fee would presumably be offset by revenue collections. For small businesses, the fee would be an additional cost of doing business or recovered in charges to customers.
2009 WI Act 28
created a fee to be paid by telecommunications customers for support of county costs of police and fire protection services. The fee is billed to both residential and business landline and wireless providers including those wireless providers who use pre-paid cards to obtain cellular service. This fee will be billed to state and local government customers and business customers following the definitions in the law and this rule. Federal Government offices will be exempt from the charge because of the federal supremacy clause and the various court interpretations of its applicability in situations similar to those of this fee.
The cost effect on state and local government presumably will be in turn absorbed by collections in revenue. Each government and business customer will be billed according to a formula based on the number of lines of service they have in groupings of 10. Statistics on the number of lines for governments and small businesses are not available without extensive data requests of all providers of landline and cellular services in Wisconsin.
State fiscal effect
Increase in costs that may be possible to absorb within agency's budget.
Types of local governmental units affected
Towns, Villages, Cities, Counties, School Districts.
Affected Ch.
20
appropriations
None.
Long-range fiscal implications
For government, fee offset by revenue collections.
For small business, fee would be additional cost of doing business or recovered in charges to customers.
Text of Proposed Rule
SECTION 1. PSC ch.
172
is created to read:
Police and Fire Protection Fee on
Communications Connections
PSC 172.01 General.
(1)
Purpose.
The purpose of this chapter is to implement the police and fire protection fee required under s.
196.025(6)
, Stats.
(2)
Exception.
Nothing in this chapter shall preclude the commission from giving special and individual consideration to exceptional or unusual circumstances and, upon investigation of the facts and circumstances involved, adopting requirements that may be other or different than those provided in this chapter.
PSC 172.02 Definitions.
In this chapter:
(1) "Basic local voice service" means the provision to residential or business customers of an access facility, whether by wire, cable, fiber optics or radio, and essential usage within a local calling area for the transmission of high-quality 2-way interactive switched voice communication.
(2) "Commercial mobile radio service" has the meaning given in
47 USC 332
(d).
(3)
"Commission" means the public service commission.
(4) "Communications provider" means a person that provides communications service.
(5) "Communications service" means any of the following:
(a) Retail basic local voice service.
(b) Retail wireless voice service.
(c) Retail voice over internet protocol service.
(6)
"Communications service connection" means a link with a communications network that provides a person the ability to access that network for voice communications.
(7)
"Customer" means a person that purchases a communications service connection. "Customer" includes pay telephone providers, but excludes resellers.
(8) "Department" means the department of revenue.
(9) "Fee" means the police and fire protection fee imposed under s.
PSC 196.025 (6)
.
(10) "Official company lines" are communications service connections that are reserved for a communications provider's internal administrative use.
(11) "Prepaid wireless retail transaction" means the sale of a prepaid wireless communications plan with no expectation that it will be resold. A prepaid wireless retail transaction includes any of the following:
(a) The sale of a handset with airtime for a specified dollar amount, or for a specified period time, such as a finite number of minutes of use or days of service.
(b) The sale of additional airtime, including an additional finite dollar amount of service, additional minutes of use or additional days of service, whether the additional airtime was sold at a retail location, over the internet, by mail, or by telephone call.
(12) "Prepaid wireless communications plan" means a plan for wireless voice service that provides a person the right to utilize wireless voice service, is paid for prior to use, and is sold in predetermined dollar amounts whereby a number of units declines with use of a known amount.
(13) "Place of primary use" has the meaning given in
4 USC 124
(8).
(14) "Retailer" means a person that sells a prepaid wireless communications plan on behalf of a communications provider.
(15) "Subscriber" means a person that enters into a subscription communications plan with a communications provider.
(16) "Subscription communications plan" means a contract or other service agreement in which a subscriber pays a periodic rate for a communications service, including both recurring and nonrecurring charges, either paid in advance for service to be provided in the subsequent month or paid in arrears for the service previously provided.
(17) "Voice over internet protocol service" means a service that is provided to customers with either a billing address or a place of primary use within the state, that does all of the following:
(a) Enables real-time, two-way voice communications.
(b) Employs a broadband connection from the user's location.
(c) Requires internet protocol-compatible customer premises equipment.
(d) Permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network.
(18) "Wireless voice service" means commercial mobile radio service, including the resale of commercial mobile radio service but excluding mobile satellite service, that meets all of the following:
(b) Offers real-time, two-way switched voice service that is interconnected with the public switched network.
PSC 172.03
Police and fire protection fee.
(1)
Fee.
Except as provided in sub. (2), the fee shall be imposed on all communications service connections with an assigned telephone number, including a communications service provided using a voice over internet protocol connection.
(2)
Exemptions.
The fee may not be imposed on the following communications service connections:
(a) Those purchased by offices and agencies of the federal government or a sovereign tribe.
(b) Those used as official company lines.
(c) Those sold to resellers that bill end-users for the communications services provided, except that the fee shall be applied by the reseller when the connection is resold to an end-user.
PSC 172.04 Registration.
Every communications provider and retailer required to impose the fee shall register with the department, in the manner prescribed by the department, to report and remit the fees.
PSC 172.05 Assessment of fee.
(1)
Subscription communications plan.
(a)
Application of fee.
A communications provider shall apply a fee of $0.75 per month on each communications service connection established under a subscription telecommunications plan. The communications provider shall remit the fee to the department using the procedure specified in s.
PSC 172.06
.
(b)
Partial month of service
.
If a communications provider charges a subscriber for less than a full month of subscription communications plan service, the communications provider shall assess the fee in the same way that it assesses the countywide 911 charges under s.
256.35 (3)
, Stats. A provider that does not assess the 911 fees may assess a full fee if its billing system does not permit the fee to be prorated.
(c)
Multi-line service
.
1. If a communications provider furnishes multiple communications service connections to a single subscriber account, the communications provider shall impose a fee according to the following schedule:
a. For subscribers with 10 or less communications service connections, $0.75 per connection, per month.
b. For subscribers with more than 10 communications service connections, $7.50 for the first 10 connections plus $0.075 per service connection in excess of 10, per month.
2. a. If a subscriber receives service from more than one communications provider, the communications providers serving the subscriber may not add together the communication service connections to determine the fee imposed on the subscriber. Each communications provider shall determine the fee to be imposed on a subscriber based upon the communication service connections the provider itself provides.
b. A communications provider may not add together the communications service connections from multiple accounts to determine the fee imposed. Only service connections within an account may be added together.
(d)
Partial payments.
If a subscriber remits to the communications provider an amount less than the full amount billed to the subscriber in a given month, the communications provider shall first apply the partial payment to any amount the subscriber owes to the communications provider for the communications service provided.
(e)
Billing identification and information.
1. On its bill, a communications provider shall identify the fee in one of the following ways:
a. List the fee separately from other charges on a subscriber's bill and identify the fee as "police and fire protection fee."
b. Combine the fee with a charge imposed under s.
256.35(3)
, Stats., and identify the combined fee and charge as "charge for funding countywide 911 systems plus police and fire protection fee."
c. Combine the fee with basic rates and either do not identify the fee separately, or state that the basic rate includes the "police and fire protection fee."
2. On the first bill on which the fee appears, a communications provider offering a subscription communications plan shall inform its subscribers by bill message of the following:
a. The addition of the fee to the monthly bill.
b. The purpose the fee is intended to serve.
(2)
Prepaid wireless communication plan.
(a)
Application of fee.
Any retailer or communications provider that sells a Wisconsin communications service connection established under a prepaid wireless communications plan shall impose a $0.38 fee on each prepaid wireless retail transaction. The fee does not apply to the sale of related wireless handset equipment and accessories.
(b)
Determining Wisconsin connection.
A communications provider or retailer shall determine if a communications service connection that it sells is a Wisconsin communications service connection as follows:
1. If a customer receives the purchased item at a seller's business location, the sale is sourced to that business location.
2. If a customer does not receive the purchased item at a seller's business location, the sale is sourced to the location where the customer, or the customer's designated recipient, receives the product, including the location indicated by the instructions known to the seller for delivery to the customer or the customer's designated recipient.
3. If the location of a sale of a purchased item cannot be determined under subd. 1. or 2., the sale is sourced to the customer's address as indicated by the seller's business records, if the records are maintained in the ordinary course of the seller's business and if seller's use of that address to establish the location of a sale is not in bad faith.
4. If the location of a sale of a purchased item cannot be determined under subds. 1. to 3., the sale is sourced to the customer's address as obtained during the consummation of the sale, including the address indicated on the customer's payment instrument, if no other address is available and if the seller's use of that address is not in bad faith.
5. If a customer buys a prepaid wireless communications plan and the location of the sale cannot be determined under subds.1. to 4., the sale is sourced to the location associated with the telephone number associated with the plan, as determined by the seller.
(c)
Remission of fee.
1. If a prepaid wireless retail transaction is completed by a retailer, that retailer shall impose the fee and remit it using the procedure specified in s.
PSC 172.06
.
2. If a prepaid wireless retail transaction is completed by a communications provider, that provider shall impose the fee and remit it using the procedure specified in s.
PSC 172.06
.
(d)
Invoice or sales receipt identification.
A communications provider or retailer may state the amount of the fee separately on a bill, invoice, sales receipt, or other document associated with the prepaid wireless retail transaction. If a retailer or communications provider lists the fee separately, it shall identify the fee as "police and fire protection fee."
(e) When a communications provider or retailer does not state the amount of the fee separately on a bill, invoice, sales receipt or other document associated with the prepaid wireless retail transaction, but establishes to the satisfaction of the commission and the department that the customer is aware that the fee is included in the total sales price of the prepaid wireless retail transaction, the sales price shall be the amount received exclusive of the fee.
Note:: For example, a 50 minute card for a prepaid wireless account is sold in a vending machine for $20.00. A sign is conspicuously posted on the vending machine that the "Price Includes the Police and Fire Protection Fee." The sales price of the card is $19.62, the amount paid by the customer less the fee ($20.00 - $0.38 = $19.62).
PSC 172.06 Filing returns.
(1)
Filing
. Every person registered or required to be registered for the fee shall electronically file a return.
(2)
Accrual basis.
A filer under sub. (a) shall collect, report and remit the fee on an accrual, or as-imposed, basis.
(3)
Due date.
A filer under sub. (1) shall submit the return and remit fees to the department by the last day of the month following the month in which the fees are imposed.
(4)
Extensions
.
The department may, for good cause, extend the time for making any return or remitting any amount under this chapter. The extension may not exceed one month from the due date of the return and may be granted at any time provided a request is filed with the department within or prior to the period for which the extension is requested.
PSC 172.07
Uncollectible amounts and returns.
(1)
Uncollectible amounts.
(a) A filer under s.
PSC 172.06 (1)
may claim a deduction for an unpaid fee if all of the following are met:
1. The communications provider or retailer previously reported and remitted the fee to the department.
2. The communications provider or retailer writes off the fee as uncollectible in its books and records.
3. The unpaid fee is eligible to be deducted as a bad debt for federal income tax purposes, regardless of whether the filer is required to file a federal income tax return.
(b) A deduction shall be claimed in the period in which the filer writes off the unpaid fee as uncollectible in its books and records and in which the amount is eligible to be deducted as a bad debt for federal income tax purposes.
(c) If the filer subsequently collects, in whole or in part, any bad debt for which a deduction under par. (a) is claimed, the filer shall include the amount collected in the return filed for the period in which the amount is collected and shall remit the fee with that return.
(2)
Customer returns.
A filer under s.
PSC 172.06 (1)
may claim a deduction for a fee that is included in a previously filed return but refunded to the purchaser in cash or in credit. The filer shall claim the deduction on the return for the period in which the refund of the fee is paid.
PSC 172.08 Resale.
(1) (a) A reseller shall file a properly completed form PFP-211, Wisconsin Police and Fire Protection Fee Resale Certificate, with the communications provider from which it purchases communications services to resell. The reseller shall certify that the service connections it has purchased are being, or will be, resold. The certificate shall indicate whether the certificate is for a single purchase or for continuous purchases.
(b) Within 30 days of the effective date of this rule, a reseller shall file a form under par. (a) for services it is purchasing at that time. If that form is not for continuous purchases, the reseller shall file a form under par. (a) within 10 days of purchasing additional services , for resale. If a new purchasing relationship is established after the effective date of this rule, the reseller shall file a form under par. (a) within 10 days of purchasing services for resale.
(2)
When filing a return under s.
PSC 172.06 (1)
, a communications provider selling services for resale to a reseller shall not include communications service connections or prepaid wireless retail transactions involving services for which they have received a certificate under par. (a).
(3) A reseller shall apply, collect, and remit the fee for all communications service connections that it resells to an end-user.
PSC 172.09
Sales and use tax exemption.
The fee is not subject to Wisconsin sales or use taxes.
PSC 172.10 Audit.
(1) The commission may audit to determine compliance with this chapter.
(2) The department may, by office or field audit and using the procedures in ss.
77.59 (1)
to
(5)
,
(5m)
except any penalty or interest provision, (8) and (8m), Stats, determine compliance with this chapter.
(3) The filer under s.
PSC 172.06 (1)
shall maintain records to substantiate the number of communications service connections subject to the fee and the number of prepaid wireless retail transactions subject to the fee, as well as records to substantiate sales for resale and uncollectible accounts.
PSC 172.11
Appeals.
(1) A communications provider or retailer that disagrees with a notice from the department about an amount due, a refund due, or a refund claim denial relating to the fee may file an appeal with the department.
(2)
A communications provider's or retailer's appeal shall be in writing and signed. The appeal shall state the facts and reasons for disagreeing with the adjustments and include supporting documents.
(3)
A communications provider or retailer shall mail or fax the appeal within 60 days after receiving a notice of amount due, notice of refund, or notice of refund claim denial from the department. The appeal shall be submitted to the address or fax number provided in the notice. An appeal that is mailed is considered timely if it is postmarked on or before the due date specified and is received by the department within five days of the due date.
(4) The procedures in s.
77.59 (6) (a)
, Stats., shall apply to an appeal under subs. (1) to (3).
(5) (a) Within 30 days after a redetermination under sub. (4) is mailed, a communications provider or retailer may file an objection with the commission. The objection shall set out in detail the grounds upon which the objector regards the bill to be excessive or erroneous.
(b) The commission, after at least 10 days notice to the objector, shall hold a hearing on the objection. After the hearing the commission shall mail a decision by registered mail that includes the amount, if any, to be paid.
(c) If the amount to be paid under the order in par. (b) is not paid within 10 days after the determination has been sent by registered mail, the commission may proceed under s.
PSC 172.12
.
PSC 172.12
Collection action authorized.
The commission may bring an action to collect any amount that is required to be remitted under this chapter.
Notice of Hearings
Revenue
NOTICE IS HEREBY GIVEN That pursuant to ss.
227.11 (2) (a)
and
227.24
, Stats., the Department of Revenue will hold public hearings to consider emergency rules and the creation of permanent rules revising Chapter
Tax 11
, relating to sales and use tax.
The proposed rule order will:
•
Reflect the changes in Wisconsin's sales and use tax laws due to the adoption of the statutory changes needed to bring Wisconsin's sales and use tax laws into compliance with the Streamlined Sales and Use Tax Agreement
•
Provide guidance to Department employees and taxpayers so that they can properly apply the Wisconsin sales and use tax laws.
Hearing Information
The hearings will be held:
Date and Time:
Location:
December 1, 2009
Events Room
at 1:00 p.m.
State Revenue Building
2135 Rimrock Road
Madison, Wisconsin
December 15, 2009
Events Room
at 1:00 p.m.
State Revenue Building
2135 Rimrock Road
Madison, Wisconsin
Handicap access is available at the hearing location.
Copies of Proposed Rules
A copy of the full text of the proposed rule order and the full fiscal estimate may be obtained at no cost by contacting the department. See
Agency Contact Person
listed below.
Submission of Written Comments
Interested persons are invited to appear at the hearings and may make an oral presentation. It is requested that written comments reflecting the oral presentation be given to the department at the hearings. Written comments may also be submitted to the contact person shown under
Agency Contact Person
listed below no later than December 15, 2009, and will be given the same consideration as testimony presented at the hearings.
Agency Contact Person
Dale Kleven
Department of Revenue
Mail Stop 6-40
2135 Rimrock Road — PO Box 8933
Madison WI 53708-8933
Telephone: (608) 266-8253
Analysis Prepared by Department of Revenue
Statute interpreted
Statutory authority
Explanation of agency authority
Section
227.11 (2) (a)
, Stats., provides that each agency may promulgate rules interpreting the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute.
Related statute or rule
There are no other applicable statutes or rules.
Plain language analysis
This proposed rule does the following:
•
Reflects the changes in Wisconsin's sales and use tax laws due to the adoption of the statutory changes needed to bring Wisconsin's sales and use tax laws into compliance with the Streamlined Sales and Use Tax Agreement (SSUTA).
•
Provides guidance to Department employees and taxpayers so that they can properly apply the Wisconsin sales and use tax laws.
•
Removes incorrect and outdated information.
•
Revises punctuation to improve readability and conform to Legislative Clearing House rules and requirements.
•
Removes the term "gross receipts" from the rules and replaces it with "sales price," which is a newly defined term under the SSUTA.
•
Changes numerous references to "tangible personal property" that were previously contained in the rules to "tangible personal property and items, property, and goods under s.
77.52 (1) (b)
,
(c)
, and
(d)
, Stats." because the definition of "tangible personal property" under previous law was amended and some items that were previously included in the definition of "tangible personal property" now have the sales and use tax specifically imposed on them in new sections of the statutes, specifically secs. 77.52 (1) (b), (c), and (d), Stats.
•
Renumbers various sections within the rules to improve readability.
•
Adds additional information related to numerous statutory changes that were not previously reflected in the rules, including information related to new exemptions on items such as durable medical equipment for home use, mobility–enhancing equipment, prosthetic devices and food and food ingredients and certain admissions.
•
Creates a new rule (s.
Tax 11.945
), specifically relating to the proper sourcing of transactions so a person will know whether the transaction is subject to Wisconsin sales or use tax and adds information relating to the sourcing of leases and rentals in s.
Tax 11.29
.
•
Adds additional information pertaining to exemption certificates in s.
Tax 11.14
.
Comparison with federal regulations
There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the rule. However, the Streamlined Sales Tax Project (SSTP) is a nationwide project that is intended to modernize and simplify the sales and use tax reporting in the states who choose to conform their laws to the requirements contained in the Streamlined Sales and Use Tax Agreement (SSUTA). Adopting the requirements of the SSUTA will help make Wisconsin's sales and use tax laws more uniform with the sales and use tax laws of the other states that have also conformed their laws to the requirements of the SSUTA.
Comparison with rules in adjacent states
Minnesota, Michigan and Iowa have conformed their laws to the requirements of the SSUTA and therefore, like Wisconsin, must administer their laws in a manner consistent with the requirements of the SSUTA. These states do this through a combination of statutory provisions and administrative rules.
Illinois has not conformed their laws to the requirements of the SSUTA and is not bound by the requirements contained in the SSUTA.
Summary of factual data and analytical methodologies
2009 Wisconsin Act 2
adopted statutory changes to bring Wisconsin's sales and use tax statutes into conformity with the Streamlined Sales and Use Tax Agreement. The department has created this proposed rule to reflect these changes in Wisconsin's sales and use tax laws.
Analysis and supporting documents used to determine effect on small business
As explained above, this proposed rule is created to reflect changes in Wisconsin's sales and use tax laws. As the rule itself does not impose any significant financial or other compliance burden, the department has determined that it does not have a significant effect on small business.
Anticipated costs incurred by private sector
This proposed rule does not have a significant fiscal effect on the private sector.
Small Business Impact
This proposed rule order does not have a significant economic impact on a substantial number of small businesses.
Fiscal Estimate
2009 Wisconsin Act 2
adopted statutory changes to bring Wisconsin into conformity with the Streamlined Sales and Use Tax Agreement (SSUTA). The SSUTA is the result of an effort by state governments, with input from local governments and the private sector, to simplify and modernize sales and use tax administration. Under the agreement, Wisconsin must use standard definitions for sales tax purposes.
The proposed rule conforms ch.
Tax 11
to current law, as modified by the Streamlined Sales and Use Tax Agreement provisions of
2009 Wisconsin Act 2
. The rule provides guidance in the application of the law by providing specific examples of items that are both included and excluded from certain SSUTA definitions. The rule provides examples of exempt durable medical equipment, exempt prosthetic devices, and exempt mobility enhancing equipment. The rule also provides several guide lists — including items typically sold by grocers that are subject to the sales tax and items typically sold by grocers that are exempt from the tax.
Since the fiscal effect of conforming Wisconsin law to the SSUTA was included in the fiscal estimate of
2009 Wisconsin Act 2
, the rule has no fiscal effect.
