Chapter 323

323.01(1) (1) To prepare the state and its subdivisions to cope with emergencies resulting from a disaster, or the imminent threat of a disaster, it is declared to be necessary to establish an organization for emergency management, conferring upon the governor and others specified the powers and duties provided by this chapter.

323.01(2) (2) Unless otherwise specified by law, the role of any state agency, including the department of military affairs and the division, in an emergency declared under this chapter, is to assist local units of government and local law enforcement agencies in responding to a disaster or the imminent threat of a disaster.

323.01(3) (3) This chapter may not limit or in any way affect the responsibility of the American National Red Cross as authorized by the congress of the United States.

323.01 History History: 1979 c. 361 s. 52; 1995 a. 247; 2009 a. 42 ss. 49, 50, 108, 119; Stats. 2009 s. 323.01.

323.02 323.02 Definitions. In this chapter, unless the context clearly indicates otherwise:

323.02(1) (1) “Adjutant general” means the adjutant general of the department of military affairs.

323.02(2) (2) “Administrator” means the administrator of the division.

323.02(3) (3) “Biological agent” means any of the following:

323.02(3)(a) (a) A select agent that is a virus, bacterium, rickettsia, fungus, or toxin that is specified under 42 CFR 72, Appendix A.

323.02(3)(b) (b) A genetically modified microorganism or genetic element from an organism under par. (a) that is shown to produce or encode for a factor associated with a disease.

323.02(3)(c) (c) A genetically modified microorganism or genetic element that contains nucleic acid sequences coding for a toxin under par. (a) or its toxic subunit.

323.02(3)(d) (d) An agent specified by the department of health services by rule.

323.02(4) (4) “Bioterrorism” means the intentional use of any biological, chemical, or radiological agent to cause death, disease or biological malfunction in a human, animal, plant, or other living organism in order to influence the policy of a governmental unit or to intimidate or coerce the civilian population.

323.02(5) (5) “Chemical agent” means a substance that has chemical properties that produce lethal or serious effects in humans, plants, animals, or other living organisms.

323.02(6) (6) “Disaster” means a severe or prolonged, natural or human-caused, occurrence that threatens or negatively impacts life, health, property, infrastructure, the environment, the security of this state or a portion of this state, or critical systems, including computer, telecommunications, or agricultural systems.

323.02(7) (7) “Division” means the division of emergency management.

323.02(8) (8) “Emergency management” means all measures undertaken by or on behalf of the state and its subdivisions to do any of the following:

323.02(8)(a) (a) Prepare for and minimize the effect of a disaster or the imminent threat of a disaster.

323.02(8)(b) (b) Make repairs to or restore infrastructure or critical systems that are destroyed or damaged by a disaster.

323.02(9) (9) “Incident command system” means a functional management system established to control, direct, and manage the roles, responsibilities, and operations of all of the agencies involved in a multi-jurisdictional or multi-agency emergency response.

323.02(10) (10) “Law enforcement officer” has the meaning given in s. 165.85 (2) (c).

323.02(11) (11) “Level A release” means a release of a hazardous substance that necessitates the highest level of protective equipment for the skin and respiratory systems of emergency response personnel because of any of the following conditions:

323.02(11)(a) (a) Substances with a high degree of hazard to the skin are known or suspected to be present and skin contact is possible.

323.02(11)(b) (b) There are present, or there is a potential for, high atmospheric levels of substances that are harmful to the skin or capable of being absorbed through intact skin.

323.02(11)(c) (c) Operations at the site of the release involve a high potential for exposure to liquids or particulates that are harmful to the skin or capable of being absorbed through intact skin.

323.02(11)(d) (d) Response operations must be conducted in confined, poorly ventilated areas and the absence of conditions under pars. (a) to (c) has not been established.

323.02(12) (12) “Level B release” means a release of a hazardous substance that necessitates the highest level of protective equipment for the respiratory systems of emergency response personnel, but less skin protection than a level A release, because operations at the site of the release do not involve a high potential for exposure to liquids or particulates that are harmful to the skin or capable of being absorbed through intact skin and any of the following conditions exists:

323.02(12)(a) (a) The type and concentration of substances in the atmosphere have been identified and are dangerous to respiration but are not harmful to skin or capable of being absorbed through intact skin.

323.02(12)(b) (b) The atmosphere contains less than 19.5 percent oxygen but does not contain substances that are harmful to skin or capable of being absorbed through intact skin.

323.02(12)(c) (c) Vapors or gases are present that have not been completely identified but it is known that those vapors or gases are not harmful to skin or capable of being absorbed through intact skin.

323.02(13) (13) “Local emergency response team” means a team that the local emergency planning committee identifies under s. 323.61 (2m) (e).

323.02(14) (14) “Local health department” has the meaning given in s. 250.01 (4).

323.02(15) (15) “Local unit of government” means a county, city, village, or town.

323.02(16) (16) “Public health emergency” means the occurrence or imminent threat of an illness or health condition that meets all of the following criteria:

323.02(16)(a) (a) Is believed to be caused by bioterrorism or a novel or previously controlled or eradicated biological agent.

323.02(16)(b) (b) Poses a high probability of any of the following:

323.02(16)(b)1. 1. A large number of deaths or serious or long-term disabilities among humans.

323.02(16)(b)2. 2. A high probability of widespread exposure to a biological, chemical, or radiological agent that creates a significant risk of substantial future harm to a large number of people.

323.02(17) (17) “Public works” means the physical structures and facilities developed or acquired by a local unit of government or a federally recognized American Indian tribe or band in this state to provide services and functions for the benefit and use of the public, including water, sewerage, waste disposal, utilities, and transportation.

323.02(18) (18) “Radiological agent” means radiation or radioactive material at a level that is dangerous to humans, animals, plants, or other living organisms.

323.02(19) (19) “State agency” means any office, commission, board, department, or bureau of state government.

323.02 History History: 1979 c. 361 ss. 54, 73; 1989 a. 31; 1995 a. 247; 2001 a. 109; 2003 a. 186; 2005 a. 269; 2007 a. 20 s. 9121 (6) (a); 2009 a. 42 ss. 51 to 65, 164 to 166, 280 to 284; Stats. 2009 s. 323.02.

subch. II of ch. 323 SUBCHAPTER II

POWERS AND DUTIES RELATED TO EMERGENCY MANAGEMENT

323.10 323.10 Declaration by governor. The governor may issue an executive order declaring a state of emergency for the state or any portion of the state if he or she determines that an emergency resulting from a disaster or the imminent threat of a disaster exists. If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency. If the governor determines that the emergency is related to computer or telecommunication systems, he or she may designate the department of administration as the lead agency to respond to that emergency. A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature. A copy of the executive order shall be filed with the secretary of state. The executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution.

323.10 History History: 2009 a. 42 s. 72; Stats. 2009 s. 323.10.

323.10 Annotation This section specifies that no state of emergency may last longer than 60 days unless it is extended by joint resolution of the legislature and that the legislature may cut short a state of emergency by joint resolution. This section contemplates that the power to end and to refuse to extend a state of emergency resides with the legislature even when the underlying occurrence creating the emergency remains a threat. Therefore, when a governor relies on the same enabling condition for multiple states of emergency, or declares a new state of emergency to replace a state of emergency terminated by the legislature, the governor acts contrary to the statute’s plain meaning. Fabick v. Evers, 2021 WI 28, 396 Wis. 2d 231, 956 N.W.2d 856, 20-1718.

323.11 323.11 Declaration by local government. The governing body of any local unit of government may declare, by ordinance or resolution, an emergency existing within the local unit of government whenever conditions arise by reason of a riot or civil commotion, a disaster, or an imminent threat of a disaster, that impairs transportation, food or fuel supplies, medical care, fire, health or police protection, or other critical systems of the local unit of government. The period of the emergency shall be limited by the ordinance or resolution to the time during which the emergency conditions exist or are likely to exist.

323.11 History History: 2009 a. 42 s. 233; Stats. 2009 s. 323.11.

323.12 323.12 Governor; duties and powers; out-of-state assistance.

323.12(1) (1) Ongoing duties. The governor shall do all of the following:

323.12(1)(a) (a) Review orders establishing or altering emergency management areas.

323.12(1)(b) (b) Review state emergency management plans and modifications to the plans.

323.12(1)(c) (c) Determine responsibilities of state departments and independent agencies with respect to emergency management and by order direct those departments and agencies in utilizing personnel, facilities, supplies, and equipment before and during a state of emergency.

323.12(2) (2) Ongoing powers. The governor may do all of the following:

323.12(2)(a) (a) On behalf of the state, enter into mutual aid agreements concerning emergency management with other states.

323.12(2)(b) (b) Accept from any source gifts and grants including services for emergency management purposes and may authorize the state and local units of government to receive such gifts and grants. When grants require participation by a local unit of government, the state may transfer title to equipment acquired through an agreement between participating local units of government.

323.12(2)(c) (c) If the governor determines that a condition of civil disorder or a threat to the safety of persons on state property or damage or destruction to state property exists, he or she may, without declaring an emergency, call out the state traffic patrol or the conservation warden service or members of that patrol or service for use in connection with the threat to life or property.

323.12(3) (3) Duties during an emergency. During a state of emergency declared under s. 323.10, the governor shall issue orders, delegate such authority as is necessary to the administrator, and direct the division to coordinate emergency management activities.

323.12(4) (4) Powers during an emergency. The governor may do all of the following during a state of emergency declared under s. 323.10:

323.12(4)(a) (a) Declare priority of emergency management contracts over other contracts, allocate materials and facilities in his or her discretion, and take, use, and destroy, in the name of the state, private property for emergency management purposes. The governor shall keep records of that action. Those records shall be evidence of a claim against the state. The claim against the state shall be referred to the claims board under s. 16.007.

323.12(4)(b) (b) Issue such orders as he or she deems necessary for the security of persons and property.

323.12(4)(c) (c) Contract on behalf of the state with any person to provide, on a cost basis, equipment and services to be used to respond to a disaster or the imminent threat of a disaster.

323.12(4)(d) (d) Suspend the provisions of any administrative rule if the strict compliance with that rule would prevent, hinder, or delay necessary actions to respond to the disaster.

323.12(4)(e) (e) At his or her discretion, waive any fee required by the state for the replacement of a permit, license, approval, or other authorization for a person who resides or is headquartered in the area to which the governor’s executive order under s. 323.10 applies and whose permit, license, approval, or other authorization is lost or destroyed in connection with the state of emergency.

323.12(5) (5) Work performed by an out-of-state business or employee.

323.12(5)(a) (a) In this subsection:

323.12(5)(a)1. 1. “Declared state of emergency” means a state of emergency declared by the governor under s. 323.10.

323.12(5)(a)2. 2. “Disaster period” means the time that begins 10 days before a declared state of emergency and ends 60 days after the declared state of emergency ends.

323.12(5)(a)3. 3. “Disaster relief work” means work, including repairing, renovating, installing, building, or performing other services or activities, relating to infrastructure in this state that has been damaged, impaired, or destroyed in connection with a declared state of emergency.

323.12(5)(a)4. 4. “Doing business in this state” has the meaning given in s. 71.22 (1r), except that members of a combined group, as defined in s. 71.255 (1) (a), are not considered to be doing business in this state based solely on another member of the combined group doing business in this state. A business shall be considered to be doing business in this state for purposes of ch. 77 if it performs disaster relief work in this state.

323.12(5)(a)5. 5. “Infrastructure” means property and equipment owned or used by a telecommunications provider or cable operator or that is used for communications networks, including telecommunications, broadband, and multichannel video networks; electric generation, transmission, and distribution systems; gas distribution systems; water pipelines; and any related support facilities that service multiple customers or citizens, including buildings, offices, lines, poles, pipes, structures, equipment, and other real or personal property.

323.12(5)(a)6. 6. “Out-of-state business” means a sole proprietorship, partnership, limited liability company, joint venture, corporation, or other organization or enterprise, whether operated for profit or not for profit, that is not organized under the laws of this state and that, except for disaster relief work during a disaster period, was not doing business in this state during the 3 taxable years immediately preceding the disaster period or the current taxable year in which the declared state of emergency occurs.

323.12(5)(a)7. 7. “Out-of-state employee” means an individual who does not work in this state, except for disaster relief work during a disaster period, and who immediately prior to that declared state of emergency was not a resident of this state, was not doing business in this state that required a tax return to be filed in this state, and was not performing services in this state that required a tax return to be filed in this state.

323.12(5)(a)8. 8. “Taxable year” has the meaning given in s. 71.01 (12).

323.12(5)(b) (b) Subject to par. (c), any out-of-state business or out-of-state employee is exempt from all of the following for disaster relief work performed during a disaster period:

323.12(5)(b)1. 1. Any applicable state withholding, income, franchise, or use tax, and any related registration requirement or fee, as provided under ss. 71.03 (2) (a) 2., 71.04 (7) (f) 17., 71.05 (1) (g), 71.23 (3) (bm), 71.25 (9) (f) 17. and (16), 71.26 (2) (a) 12., 71.64 (6) (c), 71.67 (6) (b), 77.52 (7) (b) and (12), and 77.53 (9) (b) and (19). The department of revenue may examine and inspect the books, records, memoranda, and property of any out-of-state business or out-of-state employee to verify an exemption claimed under this subdivision.

323.12(5)(b)2. 2. Any applicable fee imposed by a state agency, local unit of government, or other subdivision or instrumentality of the state or of a local unit of government.

323.12(5)(b)3. 3. Any applicable license, certificate, registration, permit, or other credential or approval of a state agency, local unit of government, or other subdivision or instrumentality of the state or of a local unit of government.

323.12(5)(c) (c) No later than 90 days after the last day of a disaster period, any out-of-state business, and the employer of any out-of-state employee, that wishes to claim an exemption under par. (b) shall provide notice to the department of revenue, in the manner prescribed by the department, that the out-of-state business or out-of-state employee is in the state solely to perform disaster relief work. The notice shall include all of the following information for each out-of-state business and each out-of-state employee:

323.12(5)(c)1. 1. Legal name and business name, if any.

323.12(5)(c)2. 2. State of domicile or residence.

323.12(5)(c)3. 3. Principal address.

323.12(5)(c)4. 4. Federal tax identification number.

323.12(5)(c)5. 5. The date of entry to the state for the purpose of performing the disaster relief work.

323.12(5)(c)6. 6. Contact information.

323.12(5)(d) (d) A business organized under the laws of this state shall provide the information required under par. (c) for any out-of-state business that is a related entity, as defined in s. 71.22 (9am), that enters the state to perform disaster relief.

323.12 History History: 2009 a. 42 ss. 68 to 71, 73 to 78, 122, 286 to 289; Stats. 2009 s. 323.12; 2015 a. 84; 2017 a. 291.

323.13 323.13 Adjutant general; duties and powers.