Fiscal Estimate
Summary
The rules require a registration credential for various building contactors who are involved in the construction or modification of public buildings and places of employment and one- and 2-family dwellings, unless the contractor already holds another type of contractor credential issued by the department. The type of contracting businesses required to be registered under the rules include commercial general construction, drywall, plastering, electrical wiring, finish carpentry, flooring, framing carpentry, glass and glazing, insulation, masonry and stone work, plumbing, concrete work, roofing, siding, building site preparation and/or stabilization, structural steel, tile and terrazzo, wall coverings, and other building or equipment specialties.
The department estimates that there would be 30,000 contracting businesses that would be required to obtain registrations. The department proposes to charge $100 for a 4-year, building contractor registration. There is also a $15 initial application fee that would be waived if the applicant applies and pays for the registration via the internet. The department estimates that it would realize approximately $806,250 in revenue annually.
The department anticipates that the workload associated with this registration can be managed with information technology usage and within current staff levels associated with the administration of the commercial building code program and the one- and 2- family dwelling code program.
State fiscal effect
Increase in existing revenues.
Increase costs - may be possible to absorb within agency's budget.
Local government fiscal effect
None.
Fund sources affected
PRO.
Long-range fiscal implications
None are anticipated.
Agency Contact
Robert DuPont, Bureau Director
Phone: (608) 266-8984
Finding of Emergency
The Department of Commerce finds that an emergency exists within the state of Wisconsin and that adoption of an emergency rule is necessary for the immediate preservation of the public health, safety and welfare. A statement of the facts constituting the emergency is as follows.
1.
Under Chapter
560
of the Statutes, the department of commerce is charged with facilitating the establishment and retention of business enterprises in Wisconsin, and with seeking closer cooperation and coordination between units of state government, so that the economy of the state may continue to develop fully and meet citizen and community needs.
2.
Under Chapters
101
and
145
of the statutes, the department of commerce has oversight over the design, construction, alteration and maintenance of public buildings and places of employment, one- and two- family dwellings, public swimming pools and public water attractions in order to protect public safety, health and welfare and the waters of the state.
3.
The department has proposed an administrative rule that would require the registration of various types of building contractors not already credentialed by the department under existing administrative rules. Under the proposed rules contractors must be registered with the department by January 1, 2010. A public hearing on that proposal was held on January 21, 2009.
4.
The proposed rule has three main benefits to Wisconsin: first, it will enhance the department's ability to communicate with and educate building contractors throughout the state about their obligations to limit safety and health risks for the citizens of Wisconsin; second, it will enhance the ability of the department to cooperate and coordinate with the Department of Workforce Development relative to their administration of unemployment insurance and workers compensation insurance programs; and third, it will enhance the ability of the department to cooperate and coordinate with the Department of Revenue relative to their administration of the state income tax program.
5.
Due to the current economic circumstances, the department has determined that the implementation for building contractor registration should be July 1, 2009 in order for the benefits to be in effect for the 2009 building construction season.
Pursuant to section
227.24
, Stats., this rule is adopted as an emergency rule to take effect upon publication in the official state newspaper, except for ss.
Comm 5.30 (1)
and
Comm 61.295 (2)
which shall take effect on July 1, 2009.
Notice of Hearing
Commerce
Fee Schedule, Ch. Comm 2
Flammable, Combustible and Hazardous Liquids,
Ch. Comm 10
NOTICE IS HEREBY GIVEN that pursuant to section
101.09 (3)
of the Statutes, the Department of Commerce will hold a public hearing on proposed rules in Chapters
Comm 2
and
10
, relating to flammable, combustible and hazardous liquids, and affecting small businesses.
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
|
March 31, 2009
Tuesday
9:00 a.m.
|
Thompson Commerce Center
Third Floor, Room 3B
201 West Washington Avenue
Madison, Wisconsin
|
The hearing will be held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call Sam Rockweiler at (608) 266-0797 or at Contact Through Relay at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.
Appearances at Hearing and Submission of Written Comments
Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing, via e-mail. Persons submitting comments will not receive individual responses. The hearing record on this rulemaking will remain open until April 2, 2009, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. E-mail comments should be sent to
sam.rockweiler@wi.us
. If e-mail submittal is not possible, written comments may be submitted to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.
Copies of Proposed Rules
The proposed rules and an analysis of the rules are available on the Internet by entering "Comm 10" in the search engine at the following Web site:
http://adminrules. wisconsin.gov.
Paper copies may be obtained without cost from Sam Rockweiler at the Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53707, or at
sam.rockweiler@wi.us
, or at telephone (608) 266-0797, or at Contact Through Relay. Copies will also be available at the public hearing.
Analysis Prepared by Department of Commerce
Statutes interpreted
Statutory authority
Explanation of agency authority
Under the statutes listed above, the Department has a responsibility to adopt and administer rules for safe storage, handling and use of flammable, combustible and hazardous liquids. The rules in this order encompass fire safety, life safety and environmental safety aspects for flammable, combustible and hazardous liquids. The Department also has authority under section
227.11 (2) (a)
of the Statutes to promulgate rules interpreting any statute that is enforced or administered by the Department, if the rule is considered necessary to effectuate the purpose of the statute.
Related statute or rule
The rules in this order are related to rules in chapter Comm 14, which addresses fire prevention; chapter Comm 47, which addresses Petroleum Environmental Cleanup Fund Awards; and chapter Comm 48, which addresses grade specifications and inspection criteria for petroleum products.
Plain language analysis
The rules in this order are primarily intended to implement the operator-training criteria issued by the United States Environmental Protection Agency (EPA) in response to the federal Energy Policy Act of 2005. These criteria apply to all underground storage tank systems (USTs) that are federally regulated under Part 280 of Title 40 of the
Code of Federal Regulations
. These tank systems coincide with the underground storage tank systems that are required by section
Comm 10.145
to have a permit to operate from the Department.
The proposed rules also include several miscellaneous changes in chapters Comm 2 and 10 that are needed primarily for clarification purposes as a follow-up to repealing and recreating chapter Comm 10 in 2008. These changes include (1) adopting an updated version of a standard for repair of shop-fabricated aboveground tanks; (2) clarifying that overfill-protection requirements apply to existing (not just new) aboveground storage tanks having both a fill point outside a diked area and either a tight-connect delivery or latch-open filling; (3) extending secondary-containment requirements to apply to new safe-suction systems and new tank-manifold piping, to be consistent with overriding EPA regulations; (4) clarifying that inventory-verification requirements apply only to retail tank systems, and that they apply there regardless of the capability of an automatic tank gauge; (5) extending underground storage tank tightness testing to tanks that are inspected internally because of having a failing sacrificial anode system, tanks that have periodic internal inspections because of being previously lined, and tanks that have a lining which is being repaired; (6) requiring installation of an access way from the tank interior to finished grade (if not already provided) when lining a tank or inspecting a lined tank, so that an inspector can readily enter the tank during subsequent inspections; and (7) making underground storage tank systems comply with the aboveground storage tank system requirements for double-poppet emergency shut-off valves at dispensers, and for monthly monitoring of the water level in the tank.
In addition to clarifying the application of inventory-verification requirements to retail facilities, the Department invites recommendations on whether to apply these or similar inventory-verification requirements to non-retail facilities that have underground tanks or underground pressurized piping, such as bulk plants and fleet operations.
Comparison with federal regulations
The operator-training requirements in Section 9010(a) of the federal Solid Waste Disposal Act that was enacted as part of the 2005 Energy Policy Act, and the EPA criteria issued in conjunction with Section 9010(a), establish three classes of operators for federally regulated underground storage tank systems – i.e., Class A operators have primary responsibility for on-site operation and maintenance of the systems, Class B operators have daily on-site responsibility for the operation and maintenance of the systems, and Class C operators have daily on-site responsibility for addressing emergencies presented by spills or releases from the systems. The EPA criteria, as published in EPA-510-R-07-005, further specify (1) which facilities are subject to the training criteria, (2) who is subject to the training criteria, (3) minimum components of the training programs for each class of operator, (4) a 3-year timeframe for completing the training of all the operators, (5) establishment of a state-level system for ensuring all operators are trained in accordance with the criteria, (6) methods for states to demonstrate compliance with the criteria, and (7) methods the EPA will use to enforce state-level compliance with the criteria.
The operator-training rules in this proposed order consist of no more than – and no less than – the EPA criteria, with the following exceptions:
A.
Wherever the EPA criteria refer to a "release," other than for reporting, the text is clarified to also refer to leaks. This clarification is consistent with the text in chapter Comm 10 that recognizes and distinguishes between these two circumstances. Consequently, for example, the proposed rules would (1) require a Class B operator to receive training in operation and maintenance requirements that address leak detection – not just release detection, and (2) require a Class C operator to be trained to take action in response to an alarm caused by a leak – not just an alarm caused by a release. The EPA references to reporting of releases are not expanded to include reporting of leaks, except where a Class C operator reports to a Class B operator, because chapter Comm 10 does not require reporting leaks. However, the references to reporting of releases are clarified to include both suspected and obvious releases, to be consistent with the text in chapter Comm 10 that recognizes and distinguish between these two types of releases.
B.
For a facility at which the owner and operator are separate persons, additional text makes them equally responsible for ensuring that the Class A, Class B and Class C operators are designated.
C.
The responsibilities for the Class B operator, in section
Comm 10.830 (2) (e)
, are expanded to include providing the Class C operator with specified, written instructions for fulfilling the Class C responsibilities; and those Class C responsibilities are described in greater detail in the specified instructions than in the EPA criteria. Similarly, additional text in section
Comm 10.830 (2) (f)
clarifies that the Class B operator is responsible for ensuring that the Class C operator is present during all operating hours of typical tank systems for fueling facilities; and the circumstances where that presence is not required are specified. Further, section
Comm 10.842 (2)
clarifies that the Class C operator must be trained to understand the required written instructions.
D.
In the prescribed acceptable training, in section
Comm 10.850 (2) (b)
, additional text clarifies that the training for a Class C operator must be provided by, or authorized by, an accredited Class A or Class B operator
for the facility where the Class C operator is employed
. Consequently, a Class C operator could move from one facility to another that is operated by the same Class A or Class B operator – but would need new training and accreditation to be a Class C operator at another facility that is operated by a different Class A or Class B operator.
E.
In the retraining requirements, in section
Comm 10.880
, a definition is included for "significant compliance," which applies beyond EPA's referenced guidance for release prevention and release detection. This definition is intended to foster consistency in enforcement, and is essentially copied from the definition of "substantial compliance" in the Wisconsin Fire Protection Code, chapter Comm 14, where it has been helpful for the past several years in auditing local fire departments.
The proposed rules include selection of the following options that are allowed in the EPA criteria:
A.
For the deadline for having a Class A, Class B and Class C operator, in section
Comm 10.820
, a phase-in schedule is established that (1) applies EPA's August 8, 2012, deadline only to small businesses; and (2) applies an earlier, January 1, 2012, deadline to all other facilities. This phase-in would be consistent with the requirements in section
227.22 (2) (e)
of the Statutes for allowing small businesses extra time to comply with new rules that have a significant economic impact, and could be helpful not only to small businesses but also to the Department and its regulatory and training partners in implementing this portion of the training program.
B.
In section
Comm 10.841 (2) (a)
, an option is included for any Class B operator to have site-specific training that is focused only on equipment used at the operator's facility.
C.
Section
Comm 10.850 (2) (a) 1.
specifies a Wisconsin-based International Code Council
®
training and certification process for Class A and Class B operators, as the base-level process. Discussions with ICC staff indicate several advantages of using this approach – particularly in combination with the equivalent, alternate training programs that are permitted for Class A and Class B operators in section
Comm 10.850 (2) (a) 2.
The ICC process could include evaluation and certification of individuals who skip the training because they already have adequate knowledge about operating underground storage tank systems.
D.
Section
Comm 10.850 (4)
includes, for Class A and Class B operators, reciprocity acceptance of training verification from other states that have equivalent training programs.
E.
The recordkeeping requirements in section
Comm 10.870
include keeping documentation of compliance only at each facility or at another, readily available site – rather than reporting that compliance to the Department or authorized agent.
The proposed rules do not include an EPA-referenced option of requiring renewal of the training.
Comparison with rules in adjacent states
Michigan:
Michigan is currently updating their 1998 rules for their UST program. They are working with stakeholders on the rules package and plan to have new rules promulgated within the next year. Included in the code update is the mandate for operator training, which will mostly mirror the EPA requirements. They are planning to require ICC certification and to require renewals every 2 years, and plan to limit the number of facilities that a Class B operator can oversee to 45. For facilities that are routinely attended, at least one Class C operator is expected to be present during all operating hours – and at unmanned facilities, fuel delivery personnel are expected to fulfill the Class C operator responsibilities, for the purpose of fuel deliveries. The draft rules include substantially greater detail than the EPA criteria, for the training that Class C operators must receive.
Minnesota:
Minnesota has developed a UST rule-revision draft that includes operator-training requirements and has sent it to their Revisor's Office for review, after which it will be released for public comment for 30 days. They expect to meet the August 8, 2009, EPA deadline for having the revised rule in place.
Some key points that Minnesota has included in their revised rule are as follows:
1. Training for operators will not always be mandatory. The operator will have the choice of taking only a test. If the operator fails the test, training by a State-approved trainer will be mandatory.
2. Trainers must be approved by the State in order to provide operator training.
3. Only Class A and Class B operators must pass a test.
4. Class B operators must be employees of the company that owns the facility. Class B operators will also be tested on site-specific equipment and functions. (No third-party contractors are permitted.)
5. An outside party likely will create an on-line testing platform.
6. The operator training is expected to be phased in over a 3-year period, with sequential deadlines that are based on telephone area codes.
7. For facilities that are routinely attended, at least one Class C operator is expected to be present during all operating hours – and at unmanned facilities, a sign must be posted showing the emergency shut-off procedures and the name, address and telephone number of the owner, operator or local emergency response personnel.
8.
If a facility is found to have a significant-operational- compliance violation at the time of a State inspection, the Class B operator will be required to take training and pass another test.
Minnesota has begun meeting with a group of stakeholders that includes a wide spectrum of tank owners, to help develop the test questions for the operators.
Iowa:
Iowa has begun their rulemaking process for the operator-training requirements and has held internal meetings for developing draft rules. A stakeholder meeting was held in February to discuss options and get input.
Illinois:
Illinois is in the preliminary stages of rulemaking, and has not yet developed draft rules. The State Fire Marshall's office has contacted Wisconsin to survey our experiences with stakeholder meetings and to obtain a copy of our proposed rules.
Summary of factual data and analytical methodologies
The information from which the proposed operator-training rules were developed consisted of (1) the EPA criteria published in EPA-510-R-07-005, (2) existing and proposed rules from about 15 other states, and (3) personal contacts with staff from the International Code Council and with private-sector trainers for operators of underground storage tank systems.
The proposed miscellaneous changes to chapter Comm 10 were developed primarily from six regional training sessions the Department conducted statewide in January and February of 2009 in conjunction with implementing a comprehensive update of chapter Comm 10 that became effective on February 1, 2009.
The proposed rules were also developed with assistance from the Department's advisory committee for flammable, combustible and hazardous liquids. The members of that advisory committee are as follows:
Name
Representing
Randy Shervey
Wisconsin Fire Inspectors Association
Erin Roth
Wisconsin Petroleum Council
Tim Clay
Wisconsin Federation of Cooperatives
Tara Wetzel
Wisconsin Transportation Builders
Association
Paul Knower
Wisconsin Petroleum Equipment
Contractors Association
Scott Miller
Wisconsin Fire Chiefs Association
Steve Danner
Wisconsin Aviation Trades
Association
Elizabeth Hellman
Wisconsin Utilities Association
Gary Pate
Wisconsin Insurance Alliance
John Reed
Wisconsin Airport Management
Association
Dale Safer
Wisconsin Innkeepers
Bill Noel
Wisconsin Paper Council
Matt Hauser
Wisconsin Petroleum Marketers and
Convenience Store Association
Analysis and supporting documents used to determine effect on small business
The Department derived the cost estimates in the following section from input from the International Code Council and private-sector trainers for operators of underground storage tank systems.
Anticipated costs incurred by private sector
The base-level, International Code Council certification service has been adopted by California and Wyoming. The cost is about $150 per person – which covers the cost of the State and EPA reference material, and a test. The ICC service is a self-directed process where individuals purchase the State and federal regulations and pertinent publications, and then go to a test center to take the test. The cost for taking the ICC test, without the training, is $75.
If a private-sector group such as Petroleum Training Solutions (PTS) provides open-to-the-public training, like they currently provide in Oregon and other States, the charge should be about $325 per person. PTS is partnering with several petroleum-marketer associations in Oregon and other States to get reductions in cost, in exchange for marketing the classes within the respective associations. In Oregon, the fee for members of the Oregon Petroleum Marketers Association is $280.
In Kansas, the State pays for the training, and the cost is about $5,000 per classroom. (PTS prefers to limit class sizes to 35, but in Kansas they accommodated rooms of 50.) These sessions would cost approximately $125 to $150 per person.
Williams & Company also provides classroom training in Kansas, with opportunities for direct questions and answers, and they bring in UST equipment for hands-on training. The company prefers to conduct a class of at least 50 persons – and does some classes back-to-back to minimize travel costs. These sessions would cost approximately $125 to $150 per person. The company provides an open-book group test, and certifies the participants at the conclusion of the class. Testing can be designed any way the State desires. The company maintains a spreadsheet of the individuals who are certified, along with the site identification, and provides the list to the State of Kansas to use to verify training, during annual renewals of UST permits.
Williams & Company also provides two types of webinars – the first is a video Web broadcast of a speaker in front of a local audience, and other participants can access the presentation over the Web. The second is a log-in to a Web site where participants have audio via a phone line and watch a PowerPoint presentation on the Web site. The second is much less costly. The first may require a TV studio and production facilities, and broadcast services can be rather expensive. Depending on the number of participants and the type of webinar, these costs could range from $50 to $225, based on production costs of $10,000. The biggest difference between in-class training and on-line webinars is that for webinars, the participants do not have travel time and associated expenses, so the savings are immediate.
In Colorado, PTS will start presenting webinars in May, that will cost $325. Under this webinar model, the webinars will be free, and the fee will be collected when the test is taken from PTS.
The State of New Mexico estimates that classroom training for their Class A and Class B operators may range from $200 to $350 per person.
Costs for training Class C operators are not expected to be significant because all Class C training will be provided by, or authorized by, the Class B operator for the facility.
Small Business Impact
These rule changes may have an economic effect on any small business with at least one federally regulated underground storage tank containing a flammable, combustible or federally-regulated hazardous liquid. These economic effects are not expected to be significant, and are summarized above.
Any inquiries for the small business regulatory coordinator for the Department of Commerce can be directed to Sam Rockweiler, the agency contact person listed below.
Initial Regulatory Flexibility Analysis
Types of small businesses that will be affected by the rules.
Any small business with at least one federally regulated underground storage tank system containing a flammable, combustible or federally-regulated hazardous liquid.
Reporting, bookkeeping and other procedures required for compliance with the rules.
Each facility that has a tank system as described above must maintain documentation which (1) identifies the facility's Class A, Class B and Class C operators; (2) shows these operators have received the accreditation required by the rules; and (3) lists instructions the Class C operator is required to follow.
All Class A and Class B operators must be trained to understand the responsibilities prescribed in the rules, or pass a written examination demonstrating that understanding. All Class C operators must receive prescribed training that is provided by, or authorized by, an accredited Class A or Class B operator for the facility where the Class C operator is employed.
Types of professional skills necessary for compliance with the rules.
To receive the accreditation required in the rules, Class A, Class B and Class C operators must show they understand how to (1) safely operate and maintain underground storage tank systems and corresponding liquid fuel dispensing systems, including leak detection equipment; (2) appropriately respond to any spills, leaks or releases associated with these systems; and (3) appropriately maintain the records that chapter Comm 10 currently requires for these systems.
Rules have a significant economic impact on small businesses?
No
Environmental Analysis
The Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.
Fiscal Estimate
There are no requirements in this proposal that should significantly affect either state or local government costs or revenues.
The anticipated costs that may be incurred by the private sector in complying with new requirements in the proposed rules are adequately described in the rule summary which immediately precedes the proposed rules.
Agency Contact Information
Sam Rockweiler
Wisconsin Department of Commerce
Division of Environmental and Regulatory Services
P.O. Box 14427
Madison, WI 53708-0427
telephone (608) 266-0797
Notice of Hearing
Government Accountability Board
NOTICE IS HEREBY GIVEN that pursuant to ss.
5.05 (1) (f)
and
227.11 (2) (a)
, Stats., the Government Accountability Board will hold a public hearing to consider adoption of a rule to amend s.
GAB 1.28
, Wis. Adm. Code, relating to the definition of the term "political purpose."
Hearing Information
The public hearing will be held at the time and location shown below.
Date and Time
Location
March 30, 2009
Government Accountability Board
at
9:30 a.m.
Office
212 E. Washington Avenue
3
rd
Floor
Madison, Wisconsin 53703
This public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact the agency contact person listed below.
Analysis Prepared by the Government Accountability Board
Statute interpreted
Statutory authority
Explanation of agency authority
Under the existing statute, s.
11.01 (16)
, Stats., an act is for "political purposes" when by its nature, intent or manner it directly or indirectly influences or tends to influence voting at an election. Such an act includes support or opposition to a person's present or future candidacy. Further, s.
11.01 (16) (a) 1.
, Stats., provides that acts which are for "political purposes" include but are not limited to the making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate. The existing rule, s.
GAB 1.28 (2) (c)
, provides that the campaign finance regulations under ch.
11
of the Wisconsin Statutes apply to making a communication that contains one or more specific words "or their functional equivalents" with reference to a clearly identified candidate that expressly advocates the election or defeat of that candidate and that unambiguously relates to the campaign of that candidate.
Under the existing statute, s.
11.01 (16) (a) 1.
, Stats., and rule, s.
GAB 1.28 (2) (c)
, individuals and organizations that do not spend money to expressly advocate the election or defeat of a clearly identified candidate, or to advocate a vote "Yes" or vote "No" at a referendum, are not subject to campaign finance regulation under ch.
11
of the Wisconsin Statutes. The term "expressly advocate" initially was limited to so-called "magic words" or their verbal equivalents. The Wisconsin Supreme Court, in
Wisconsin Manufacturers & Commerce (WMC) v. State Elections Board
,
227 Wis.2d 650
(1999), has opined that if the Government Accountability Board's predecessor, the Elections Board, wished to adopt a more inclusive interpretation of the term "express advocacy," it could do so by way of a rule. The Wisconsin Court of Appeals, in
Wisconsin Coalition for Voter Participation, Inc. v. State Elections Board
,
231 Wis.2d 670
(Wis. Ct. App. 1999), further opined:
And while, as plaintiffs point out, "express advocacy" on behalf of a candidate is one part of the statutory definition of "political purpose," it is not the only part. Under s.
11.01 (16)
, Stats., for example, an act is also done for a political purpose if it is undertaken "for the purpose of influencing the election . . . of any individual.
Contrary to plaintiffs' assertions, then, the term "political purposes" is not restricted by the cases, the statutes or the code to acts of express advocacy. It encompasses many acts undertaken to influence a candidate's election—including making contributions to an election campaign.
The United States Supreme Court, in
McConnell et al. v. Federal Election Commission (FEC) et al.
,
540 U.S. 93
(2003), in a December 10, 2003 opinion, has said that Congress and state legislatures may regulate political speech that is not limited to "express advocacy." Specifically, the
McConnell
Court upheld, as facially constitutional, broader federal regulations of communications that (1) refer to a clearly identified candidate; (2) are made within 60 days before a general election or 30 days before a primary election; and (3) are targeted to the relevant electorate. The
McConnell
Court further opined:
Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad . . . Indeed, the unmistakable lesson from the record in this litigation . . . is that
Buckley's
magic-words requirement is functionally meaningless . . . Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted. And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.
In
Federal Election Comm'n. v. Wisconsin Right To Life, Inc. (WRTL II),
550 U.S.
(2007), a United States Supreme Court case, Chief Justice Roberts writing for the majority, opined that an ad is the functional equivalent of express advocacy, if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate, i.e. mentions an election, candidacy, political party, or challenger; takes a position on a candidate's character, qualifications, or fitness for office; condemns a candidate's record on a particular issue.
The revised rule will more clearly specify those communications that may not reach the level of "magic words" express advocacy, yet are subject to regulation because they are the functional equivalent to express advocacy, for "political purposes," and susceptible of no other reasonable interpretation other than as an appeal to vote for or against a specific candidate.
Related statutes or rules
Plain language analysis
The revised rule will subject to regulation communications that are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The revised rule will subject communications meeting this criteria to the applicable campaign finance regulations and requirements of ch.
11
, Stats.
Comparison with federal regulations
The United States Supreme Court upheld regulation of political communications called "electioneering communications" in its December 10, 2003 decision:
McConnell et al. v. Federal Election Commission, et al.
(No.02-1674) and pursuant to its June 25, 2007 decision of:
Federal Election Commission (FEC) v. Wisconsin Right to Life, Inc. (WRTL II)
, (No.06-969and 970).
The
McConnell
decision is a review of relatively recent federal legislation – The Bipartisan Campaign Reform Act of 2002 (BCRA) – amending, principally, the Federal Election Campaign Act of 1971 (as amended). A substantial portion of the
McConnell
Court's decision upholds provisions of BCRA that establish a new form of regulated political communication – "electioneering communications" – and that subject that form of communication to disclosure requirements as well as to other limitations, such as the prohibition of corporate and labor disbursements for electioneering communications in BCRA ss. 201, 203. BCRA generally defines an "electioneering communication" as a broadcast, cable, or satellite advertisement that "refers" to a clearly identified federal candidate, is made within 60 days of a general election or 30 days of a primary and if for House or Senate elections, is targeted to the relevant electorate.
In addition, the Federal Election Commission (FEC) promulgated regulations further implementing BCRA (generally
11 CFR Parts 100
-
114
) and made revisions incorporating the
WRTL II
decision by the United States Supreme Court (generally
11 CFR Parts 104
,
114
.) The FEC regulates "electioneering communications."
Comparison with rules in adjacent states
Illinois:
Illinois has a rule requiring a nonprofit organization to file financial reports with the State Board of Elections if it: 1) is not a labor union; 2) has not established a political committee; and 3) accepts or spends more than $5,000 in any 12-month period in the aggregate:
A)
supporting or opposing candidates for public office or questions of public policy that are to appear on a ballot at an election; and/or
B)
for electioneering communications.
In addition, the same rule mandates all the same election reports of contributions and expenditures in the same manner as political committees, and the nonprofit organizations are subject to the same civil penalties for failure to file or delinquent filing. (See Illinois Administrative Code, Title 26, Chapter
1
, Part 100, s.
100.130
).
Iowa:
Iowa prohibits direct or indirect corporate contributions to committees or to expressly advocate for a vote. (s. 68A.503(1), Iowa Stats.) Iowa does allow corporations to use their funds to encourage registration of voters and participation in the political process or to publicize public issues, but provided that no part of those contributions are used to expressly advocate the nomination, election, or defeat of any candidate for public office. (s. 68A.503(4), Iowa Stats.) Iowa does not have any additional rules further defining indirect corporate contributions or expressly advocating for a vote.
Michigan:
Michigan prohibits corporate and labor contributions for political purposes (s.
169.254
, Mich. Stats.) and requires registration and reporting for any independent expenditures of $100.01 or more (s.
169.251
, Mich. Stats.) Michigan does not have any additional rules defining political purposes.
Minnesota:
Minnesota statutes prohibit direct and indirect corporate contributions and independent expenditures to promote or defeat the candidacy of an individual. (s. 211B.15(Subds. 2 and 3), Minn. Stats.) A violation of this statute could subject the corporation to a $40,000.00 penalty and forfeiture of the right to do business in Minnesota. A person violating this statute could receive a $20,000.00 penalty and up to 5 years in prison. Minnesota does not have any additional rules defining indirect influence on voting. (s. 211B15 (Subds. 6 and 7), Minn. Stats.)
Summary of factual data and analytical methodologies
Adoption of the rule was primarily predicated on federal and state statutes, regulations, and case law. Additional factual data was considered at several Government Accountability Board public meetings, specifically the expenditures on television advertisements, and the actual transcripts for the same, as aired during a recent Wisconsin Supreme Court race.
Small Business Impact
The rule will have no effect on small business, nor any economic impact.
Fiscal Estimate
The creation of this rule has no fiscal effect.
Agency Contact Person
Shane W. Falk, Staff Counsel
Government Accountability Board
212 E. Washington Avenue, 3
rd
Floor
P.O. Box 2973
Madison, Wisconsin 53701-2973
Phone 266-2094
Submission of Written Comments
Comments should be submitted no later than March 30, 2009 to the following address:
Government Accountability Board
212 E. Washington Avenue, 3
rd
Floor
P.O. Box 2973
Madison, Wisconsin 53701-2973
Text of Proposed Rule
SECTION 1. GAB 1.28 is amended to read:
GAB 1.28 Scope of regulated activity; election of candidates.
(1) Definitions. As used in this rule:
(a) "Political committee" means every committee which is formed primarily to influence elections or which is under the control of a candidate.
(b)
"Communication" means any printed advertisement, billboard, handbill, sample ballot, television or radio advertisement, telephone call, e-mail, internet posting, and any other form of communication that may be utilized for a political purpose.
(c)
"Contributions for political purposes" means contributions made to 1) a candidate, or 2) a political committee or 3) an individual who makes contributions to a candidate or political committee or incurs obligations or makes disbursements for
the purpose of expressly advocating the election or defeat of an identified candidate
political purposes
.
(2) Individuals other than candidates and
committees
persons
other than political committees are subject to the applicable
disclosure-related and recordkeeping-related
requirements of ch.
11
, Stats.,
only
when they:
(a) Make contributions
or disbursements
for political purposes, or
(b) Make contributions to any person at the request or with the authorization of a candidate or political committee, or
(c) Make a communication
containing
for a political purpose.
(3) A communication is for a "political purpose" if either of the following applies:
(a) The communication contains
terms such as the following or their functional equivalents with reference to a clearly identified candidate
that expressly advocates the election or defeat of that candidate
and
that
unambiguously relates to the campaign of that candidate:
1. "Vote for;"
2. "Elect;"
3. "Support;"
4. "Cast your ballot for;"
5. "Smith for Assembly;"
6. "Vote against;"
7. "Defeat;"
or
8. "Reject."
(b) The communication is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. A communication is susceptible of no other reasonable interpretation if it is made during the period beginning on the 60th day preceding a general, special, or spring election and ending on the date of that election or during the period beginning on the 30th day preceding a primary election and ending on the date of that election and that includes a reference to or depiction of a clearly identified candidate and:
1.
Refers to the personal qualities, character, or fitness of that candidate
;
2.
Supports or condemns that candidate's position or stance on issues; or
3.
Supports or condemns that candidate's public record.
(3)
(
4)
Consistent with s.
11.05 (2)
, Stats., nothing in sub. (1)
or
,
(2)
, or (3)
should be construed as requiring registration and reporting, under ss.
11.05
and
11.06
, Stats., of an individual whose only activity is the making of contributions.
SECTION 2. EFFECTIVE DATE.
This rule shall take effect on the first day of the month following publication in the Wisconsin administrative register as provided in s.
227.22 (intro)
, Stats.
Notice of Hearing
Natural Resources
Fish, Game, etc., Chs. NR 1—
NOTICE IS HEREBY GIVEN that pursuant to ss.
29.014 (1)
,
29.039
,
29.041
,
29.053
and
227.11 (2) (a)
, Stats., the Department of Natural Resources will hold public hearings on revisions to Chapters
NR 20
,
21
,
22
, and
23
, Wis. Adm. Code, relating to fishing and clamming on the inland, outlying and boundary waters of Wisconsin.
NOTICE IS HEREBY FURTHER GIVEN that pursuant to ss.
23.09 (2) (b)
,
29.014
,
29.053 (3)
,
29.059
,
29.089
,
29.192
and
29.193
, Stats., the Department of Natural Resources will hold public hearings on revisions to Chapters
NR 10
,
11
, and
15
, Wis. Adm. Code, relating to hunting and trapping regulations and the use of department managed lands.
NOTICE IS HEREBY FURTHER GIVEN that at 7:00 p.m. on
Monday, April 13, 2009
, the Wisconsin Conservation Congress will hold its election of county delegates in each county. Upon completion of the delegate elections, the joint Spring Hearing/Conservation Congress meeting will convene to take comments on the foregoing rule modifications.
Hearing Information
The hearings will be held on
Monday, April 13, 2009
at 7:00 p.m. at the following locations:
Adams
Adams County Courthouse, Board Room,
402 Main Street, Friendship
Ashland
Ashland Senior High School, Auditorium,
1900 Beaser Avenue, Ashland
Barron
Barron Government Center,
330 E. LaSalle Avenue, Barron
Bayfield
Drummond High School, Auditorium,
52440 Eastern Ave., Drummond
Brown
Franklin Middle School, Auditorium,
1234 W. Mason, Green Bay
Buffalo
Alma High School, Gymnasium,
S1618 STH 35, Alma
Burnett
Burnett County Government Center,
Room 165, 7410 County Road K, Siren
Calumet
Calumet County Courthouse, B025,
206 Court Street, Chilton
Chippewa
Chippewa Falls Middle School Auditorium
750 Tropicana Blvd., Chippewa Falls
Clark
Greenwood High School, Cafetorium,
306 W. Central Ave., Greenwood
Columbia
Portage Junior High School,
2505 New Pinery Rd., Portage
Crawford
Crawford County Courthouse, Court Room,
220 N. Beaumont Road, Prairie du Chien
Dane
Middleton Performing Arts Center,
Middleton High School, 2100 Bristol St.,
Middleton
Dodge
Horicon City Hall, 404 E. Lake Street,
Horicon
Door
Crossroads at Big Creek,
2041 Michigan Ave., Sturgeon Bay
Douglas
Brule Town Hall, 5814 S. Maple St., Brule
Dunn
Dunn County Fish and Game Club,
1900 Pioneer Ave., Menomonie
Eau Claire
South Middle School, Auditorium,
2115 Mitscher Ave., Eau Claire
Florence
Florence Natural Resource Center,
Basement, Highway 70/101, Florence
Fond du Lac
Theisen Middle School, 525 E Pioneer Road,
Fond du Lac
Forest
Crandon High School, Auditorium,
9750 USH 8 W, Crandon
Grant
Lancaster High School, Auditorium,
806 Elm Street, Lancaster
Green
Monroe Middle School,
1510 13
th
Street, Monroe
Green Lake
Green Lake High School, Small Gym,
612 Mill St., Green Lake
Iowa
Dodgeville High School, Gymnasium,
912 West Chapel Street, Dodgeville
Iron
Iron County Courthouse,
300 Taconite St., Hurley
Jackson
Black River Falls Middle School,
LGI Room, 1202 Pierce Street,
Black River Falls
Jefferson
Jefferson Co. Fairgrounds, Activity Center,
503 N. Jackson Ave., Jefferson
Juneau
Olson Middle School, Auditorium,
508 Grayside Avenue, Mauston
Kenosha
Bristol Grade School, Gymnasium,
20121 83
rd
Street, Bristol
Kewaunee
Kewaunee High School, Auditorium,
911 3
rd
Street, Kewaunee
La Crosse
Onalaska High School, Field House,
700 Hilltop Place, Onalaska
Lafayette
Darlington High School, Auditorium,
11838 Center Hill Road, Darlington
Langlade
Antigo High School, Volm Auditorium,
1900 10
th
Avenue, Antigo
Lincoln
Tomahawk Elementary School,
1048 East Kings Road, Tomahawk
Manitowoc
UW Manitowoc, Theater,
705 Viebahn Street, Manitowoc
Marathon
D.C. Everest Middle School,
9302 Schofield Avenue, Weston
Marinette
Crivitz High School, Auditorium,
400 South Ave, Crivitz
Marquette
Montello High School, Community Room,
222 Forest Lane, Montello
Menominee
Menominee County Courthouse, Basement,
Courthouse Lane, Keshena
Milwaukee
Nathan Hale High School, Auditorium,
11601 West Lincoln Avenue, West Allis
Monroe
Tomah High School, Cafeteria,
901 Lincoln Ave., Tomah
Oconto
Suring High School, Cafeteria,
411 E. Algoma St., Suring
Oneida
James Williams Junior High School,
915 Acacia, Rhinelander
Outagamie
Riverview Middle School, Auditorium,
101 Oak Street, Kaukauna
Ozaukee
Port Washington American Legion,
435 Lake St., Port Washington
Pepin
Pepin County Government Center,
County Board Room,
740 7th Avenue W., Durand
Pierce
Ellsworth Senior High School, Gymnasium,
323 Hillcrest St., Ellsworth
Polk
Unity High School, Gymnasium,
908 150th Street/Hwy 46, Balsam Lake
Portage
Ben Franklin Junior High School,
Auditorium, 2000 Polk Street, Stevens Point
Price
Price Co. Courthouse, County Board Room,
126 Cherry Street, Phillips
Racine
Union Grove High School, Auditorium
(Use Hwy. 45 School Entrance),
3433 S. Colony Ave., Union Grove
Richland
Richland County Courthouse,
181 West Seminary, Richland Center
Rock
Pontiac Convention Center,
2809 N. Pontiac Dr., Janesville
Rusk
Ladysmith High School, Auditorium,
1700 E. Edgewood Ave., Ladysmith
Sauk
UW–Baraboo Sauk County,
R.G. Brown Theater,
1006 Connie Road, Baraboo
Sawyer
Hayward Area Middle School, Cafetorium,
10408 Greenwood Ln., Hayward
Shawano
Shawano Community Middle School,
LGI Room, 1050 S. Union Street, Shawano
Sheboygan
Sheboygan Falls High School, Auditorium,
220 Amherst Avenue, Sheboygan Falls
St. Croix
WI Indianhead Technical College,
Cashman Conference Room,
1019 S. Knowles Ave., New Richmond
Taylor
Taylor Co. Fairgrounds, Multipurpose Bldg.
State Hwy 13 and Hwy 64 Intersection,
Medford
Trempealeau
Whitehall City Center, Gymnasium,
36245 Park Street, Whitehall
Vernon
Viroqua High School, 100 Blackhawk Drive,
Viroqua
Vilas
Town of Plum Lake Town Hall, 235 Lake St.,
Sayner
Walworth
Delavan/Darien High School, Auditorium,
150 Cummings, Delavan
Washburn
WI Ag Research Station, W6646 Hwy 70,
Spooner
Washington
Washington County Fair Park, Exhibit Hall,
3000 Hwy PV, West Bend
Waukesha
Waukesha Co. Tech. College (WCTC),
Anderson Education Center,
800 Main St., Pewaukee
Waupaca
Waupaca High School, Auditorium,
E2325 King Road, Waupaca
Waushara
Waushara County Court House, 2
nd
Floor
Old Courtroom, 209 S. St. Marie, Wautoma
Winnebago
Webster Stanley Auditorium,
915 Hazel Street, Oshkosh
Wood
Pittsville High School, Auditorium,
5459 Elementary Ave., Pittsville
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of information material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Kari Lee-Zimmermann at (608) 266-2952 with specific information on your request by April 6, 2009.
Copy of Proposed Rules and Submission of Written Comments
The proposed rules and fiscal estimates may be reviewed and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov
. Written comments on the proposed hunting and trapping regulations may be submitted via U.S. mail to Mr. Scott Loomans, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707. Written comments on the proposed fishing regulations may be submitted via U.S. mail to Mr. Joe Hennessy, Bureau of Fisheries Management, P.O. Box 7921, Madison, WI 53707. Written comments shall be postmarked not later than April 14, 2009. Written comments whether submitted electronically or by U.S. mail will be summarized for the Natural Resources Board, however, they will not be tallied along with the responses received at the county hearings.
Analysis Prepared by Department of Natural Resources
CR 09-018
— Revisions to Chapters
NR 20
,
21
,
22
, and
23
, relating to fishing and clamming on the inlands, outlying, and boundary waters of Wisconsin.
Statutes interpreted
Statutory authority
Summary of rule
The proposed rules will:
1. Allow the department to conduct criminal history background checks on individuals that want to serve as department sponsored volunteer angler education instructor or a mentor as part of a department sponsored or approved learn-to-hunt program. These instructors often and primarily serve as instructors for youth. This proposal would also remove the condition that a mentor for fishing programs may not serve as a mentor for more than 3 anglers and clarify that the applicant, instructors and mentors need to possess a valid fishing license. This will also reduce the 30 day advanced notice for applications for fishing programs to 15 days.
2. Correct an administrative error which was included in the recently adopted rules regarding minnow harvest and possession, as related to concerns regarding containing the spread of Viral Hemorrhagic Septicemia.
3. Clarify legality of using a small remote controlled boat or similar device with a piece of line and hook attached for the purpose of catching fish in Wisconsin. Our interpretation of the law is that these devices when used for fishing, if not tethered back to the boat, pier or shore where the person operating it is located, is not allowed under our "jug-fishing" rule in NR 20.06 (10).
4. Clarify that either a small game license or a fishing license is sufficient approval for a person older than 16 to take crayfish in Wisconsin.
5. Clarify boundaries of large rivers and their tributaries.
6. Repeal the barbless hooks requirement for early trout season.
7. Prohibit collection of live mussels or dead shell from the St. Croix River National Scenic Riverway, and eliminate commercial mussel harvest in the St. Croix River where it forms the boundary between Wisconsin and Minnesota (the activity is already prohibited by National Park Service rules), and in the St. Louis River where it forms the boundary between Wisconsin and Minnesota.
8. Set a minimum length restriction for walleye in Upper Clam lake (Ashland county) of 15 inches.
9. Increase the minimum length restriction for walleye in Beaver Dam lake (Barron county) from 15 inches to 18 inches, and reduce the daily angler bag limit for walleye from 5 fish to 3 fish.
10. Create an annual open season for trout in Beaver, Little Star, Nymphia, and Overby (Blaisdell) lakes (Bayfield county), where the seasons in these lakes are currently closed every other year. The annual open season in the other waters will be between the first Saturday in May and September 30.
11. Remove the 14 inch minimum length restriction for largemouth and smallmouth bass in Lake 26 (Burnett county).
13. Extend the end of open season for trout in Anderson lake (Douglas county) from September 30 to the first Sunday in March.
14. Set a minimum length restriction for walleye in Bearskull, Fisher, Owl, and Upper and Lower Springstead lakes (Iron county) of 15 inches.
15. Increase the minimum size restriction for northern pike in Silver lake (Manitowoc county) from 26 to 32 inches and reduce the daily angler bag limit from 2 to 1.
16. Correct an administrative error which improperly lists the minimum length restriction for walleye in the Wisconsin river downstream from the St. Regis dam in Rhinelander (Oneida county) as none rather than 15 inches.
17. Increase the minimum length restriction for largemouth and smallmouth bass in Burrows lake (Oneida county) from 14 inches to 18 inches, and decrease the daily angler bag limit from 5 to 1.
18. Increase the minimum length restriction for walleye in Big Round lake (Polk county) from 15 inches to 18 inches, and reduce the daily angler bag limit for walleye from 5 fish to 3 fish.
19. Replace the current 9 inch minimum length restriction for trout in Manley creek (Sauk county) with a 9 inch maximum size restriction. This rule will expire 10 years after implementation.
20. Increase the minimum size restriction for muskellunge in Big Sand, Kentuck, and Long lakes (Vilas county) from 34 inches to 50 inches.
21. Set a minimum size restriction for walleye in Dead Pike lake (Vilas county) of 18 inches, and reduce the daily angler bag limit from 5 to 3.
22. Remove the current 15 inch minimum size restriction for walleye in North Twin and South Twin lakes (Vilas county), but stipulate that walleye between 14 and 18 inches may not be kept and only 1 walleye larger than 18 inches may be part of an angler's 3 fish daily bag limit.
23. Increase the minimum length restriction for walleye in White Sand (T42 N R7E S27,) and Long lakes (Vilas county) from 15 inches to 18 inches, and reduce the daily angler bag limit for walleye from 5 fish to 3 fish, and also correct an administrative error which improperly lists the closing date of the open angling season for walleye as March 1 rather than the first Sunday in March.
24. Add Regner (Washington county) and Foxbrook (Waukesha county) ponds to the state's urban fishing program, in which there would be a continuous open season but only persons under 16 years of age or disabled pursuant to s.
29.193 (3) (a)
,
(b)
or
(c)
, Stats., may fish from the second Saturday in March to but not including the last Saturday in April, and in which persons may possess 1 largemouth bass, smallmouth bass, northern pike, walleye, sauger or hybrid in total; 10 panfish and bullheads in total; 3 trout and salmon in total, and an unlimited number of rough fish.
25. Correct an administrative error regarding bag limits for walleye, sauger, and their hybrids in Lake Winnebago. Current rules allow 5 walleye and 1 sauger or walleye/sauger hybrid, but the bag limit should be 5 walleye/sauger/ hybrids in total, only 1 of which may be a sauger or walleye/sauger hybrid.
Analysis Prepared by Department of Natural Resources
CR 09-015
:
Revisions to Chapters
NR 10
,
11
, and
15
, relating to hunting and trapping regulations and the use of department managed lands.
Statutes interpreted
Statutory authority
Summary of rule
The proposed rules will:
1. Clarify the definition of "open water hunting" for waterfowl.
2. Allow the harvest stocked hen pheasants at Sand Creek Fishery Area, Monroe County.,
3. Extend the fall turkey season to Dec. 31 in zones 1 - 5, except for the nine-day deer season.
4. Modify bobcat hunting, trapping, cable restraint seasons and reporting.
5. Allow the use of rifles for firearm deer hunting in Dunn and Shawano Counties.
6. Allow firearm deer hunting at Potawatomi and Whitefish Dunes state parks, Door County and allow the use of rifles for deer hunting at all of Hartman Creek state park, Waupaca and Portage counties.
7. Establish that the 19-day muzzleloader-only season and late archery season is antlerless only but buck hunting can be allowed in certain years at Wildcat Mountain state park, Vernon County.
8. Eliminate the late archery deer hunt at Brunet Island state park.
9. Eliminate the special state park hunting season and allow hunting during all normal deer seasons at Cadiz Springs Recreation Area.
10. Establish a special migratory bird hunt with a 1:00 p.m. closure, regulations, and modify refuges at Mead wildlife area, Wood, Portage and Marathon counties and Lake Mills wildlife area, Jefferson County.
11. Clarify the definition of legal firearm types for hunting.
12. Create flexibility in the methods for issuing left-over turkey hunting permits.
13. Create flexibility to register wild turkeys by methods other than in person at registration stations.
14. Allow the use of electronic calls for turkey hunting by certain holders of disabled hunting permits.
15. Allow the use of dogs for turkey hunting during the fall season statewide.
16. Require the registration of sharp-tailed grouse harvest.
17. Allow hunting during special turkey hunts by holders Class B disabled hunting permits that are valid for hunting from a vehicle and issued for more than one year.
18. Eliminate the Nelson-Travino Mississippi River closed area in Buffalo County.
19. Reduce the size of Dike 17 waterfowl refuge and allow trapping and firearm deer hunting (Jackson County).
20. Reduce the size of Vernon Marsh waterfowl refuge because certain areas are no longer needed as goose refuge (Waukesha County).
Small Business Impact
Pursuant to s.
227.114
, Stats., it is not anticipated that the proposed rules will have a significant economic impact on small businesses.
Environmental Analysis
The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150
, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
Fiscal Estimate
Summary
Mandatory registration of sharp-tailed grouse will not require new expenses because a harvest reporting system is already in place, its use is optional under current rules. Similarly, wild turkey harvest is recorded at department registration stations and telephone registration, if pursued, would replace the current system resulting in no new expenses. It is anticipated that costs will be less than under the current system. Startup costs for administering a bobcat harvest registration system by telephone are anticipated to be $3,000, similar to the cost of the current Canada goose telephone registration system. Annual costs would be less than $1,000 and can be absorbed within the department's current budget.
State fiscal effect
An increase in costs that may be possible to absorb within the agency's budget.
Local government fiscal effect
None.
Fund sources affected
SEG
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) (d)
, Stats., the Pharmacy Examining Board will hold a public hearing at the time and place indicated below to consider an emergency rule to repeal s.
Phar 4.02 (2)
, relating to the practical examination.
Hearing Information
Date:
April 8, 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 the Department of Regulation and Licensing, Office of Legal Counsel, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by April 13, 2009, to be included in the record of rule-making proceedings.
Copies of Rule
Copies of this rule are available upon request to Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 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 board is authorized under s.
450.02 (3) (d)
, Stats., to promulgate rules necessary for the administration of ch.
450
, Stats., which includes approving examinations to determine whether an applicant is competent to engage in the practice of pharmacy. Refer also to s.
450.04 (1)
, Stats.
Related statute or rule
Ch.
Phar 4
sets forth the board's procedures for administering, scoring, handling claims of examination error and responding to requests to retake the examination.
Plain language analysis
SECTION 1. In this emergency rule, the board repeals s.
Phar 4.02 (2)
, which relates to the practical examination required for licensure of pharmacists. Under the current rule, the board administers a practical examination to determine an applicant's competence in compounding and dispensing medications, which includes consultation of patients. The board has determined that this examination is no longer needed because the competencies tested in the examination are also tested in two other national examinations that applicants are required to take in order to obtain a license in Wisconsin.
Comparison with federal regulations
Federal Medicaid law requires a patient consultation on new prescriptions.
Comparison with rules in adjacent states
Iowa:
Iowa does not have a separate patient consultation examination requirement.
Illinois:
Illinois does not have a separate patient consultation examination requirement.
Michigan:
Michigan does not have a separate patient consultation examination requirement.
Minnesota:
Minnesota does not have a separate patient consultation examination requirement.
Summary of factual data and analytical methodologies
It was the board's custom over time to review examination performance at each full board meeting for the examination that occurred the day before its meetings. As a result of apparent trends that emerged from these post-examination reviews, the board undertook an analysis of aggregate examination pass rates as it discussed the ongoing need for a practical consultation examination and found rates to be significantly higher for graduates of the University of Wisconsin-Madison than for other pharmacy schools. The board also reviewed experience in other states and found that Wisconsin is one of only four states in the nation that continues to require a practical consultation examination. One of the implications suggested by the board as a result of its review is that the examination creates a barrier to licensure in Wisconsin, and that the benefits of the examination do not justify its costs.
Analysis and supporting documents used to determine effect on small business
It is anticipated that elimination of the examination will have a positive impact on small business by yielding an enlarged pool of licensed pharmacists available for hire.
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.
Anticipated costs incurred by private sector
The department finds that this rule has no significant fiscal effect on the private sector.
Small Business Impact
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
The department estimates that the proposed rule will have no significant fiscal impact.
Finding of Emergency
The Pharmacy Examining Board finds that, under s.
227.24 (1)
, Stats., the repeal of s.
Phar 4.02 (2)
is required for the preservation of the public peace, health, safety and welfare.
Currently, under s.
Phar 4.02 (2)
, the board administers a practical examination to determine an applicant's competence in compounding and dispensing medications, which includes consultation of patients. The board has determined that this examination is no longer needed because the competencies tested in the examination are also tested in two other national examinations that applicants are required to take in order to obtain a license in Wisconsin. The board has also determined that the practical examination requirement may contribute to the shortage of pharmacists in Wisconsin.
First, under s.
Phar 4.02 (1)
and
(3)
, an applicant is required to take and pass the Multi-State Pharmacy Jurisprudence Examination (MPJE) and the North American Pharmacist Licensure Examination (NAPLEX). Both of these examinations test competencies that relate to subject areas that are also tested in the practical examination. As a result, applicants are required to take an additional examination, and pay an additional examination fee. In some instances, this step may also result in a delay in the processing of applications for licensure.
Second, in reference to the shortage of pharmacists in Wisconsin, the board has found that populations in rural areas and in certain city neighborhoods are underserved. The board believes that, because of its practical examination requirement, potential applicants from other states are declining to seek licensure in Wisconsin. Wisconsin is one of only four states that require a practical examination. None of the states that border Wisconsin have a practical examination requirement.
Agency Contact Person
Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708; telephone 608-266-0495; email at
pamela.haack@ wisconsin.gov
.
Text of Emergency Rule
SECTION 1. Phar 4.02 (2) is repealed.
This emergency rule shall take effect on February 28, 2009.
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) (d)
, Stats., the Pharmacy Examining Board will hold a public hearing at the time and place indicated below to consider permanent rules to repeal s.
Phar 4.02 (2)
, relating to the practical examination.
Hearing Information
Date:
April 8, 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 the Department of Regulation and Licensing, Office of Legal Counsel, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by April 13, 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, Office of Legal Counsel, 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 board is authorized under s.
450.02 (3) (d)
, Stats., to promulgate rules necessary for the administration of ch.
450
, Stats., which includes approving examinations to determine whether an applicant is competent to engage in the practice of pharmacy. Refer also to s.
450.04 (1)
, Stats.
Related statute or rule
Ch.
Phar 4
sets forth the board's procedures for administering, scoring, handling claims of examination error and responding to requests to retake the examination.
Plain language analysis
SECTION 1. In this proposed rule-making order, the board proposes to repeal s.
Phar 4.02 (2)
, which relates to the practical examination required for licensure of pharmacists. Under the current rule, the board administers a practical examination to determine an applicant's competence in compounding and dispensing medications, which includes consultation of patients. The board has determined that this examination is no longer needed because the competencies tested in the examination are also tested in two other national examinations that applicants are required to take in order to obtain a license in Wisconsin.
Comparison with federal regulations
Federal Medicaid law requires a patient consultation on new prescriptions.
Comparison with rules in adjacent states
Iowa:
Iowa does not have a separate patient consultation examination requirement.
Illinois:
Illinois does not have a separate patient consultation examination requirement.
Michigan:
Michigan does not have a separate patient consultation examination requirement.
Minnesota:
Minnesota does not have a separate patient consultation examination requirement.
Summary of factual data and analytical methodologies
It was the board's custom over time to review examination performance at each full board meeting for the examination that occurred the day before its meetings. As a result of apparent trends that emerged from these post-examination reviews, the board undertook an analysis of aggregate examination pass rates as it discussed the ongoing need for a practical consultation examination and found rates to be significantly higher for graduates of the University of Wisconsin-Madison than for other pharmacy schools. The board also reviewed experience in other states and found that Wisconsin is one of only four states in the nation that continues to require a practical consultation examination. One of the implications suggested by the board as a result of its review is that the examination creates a barrier to licensure in Wisconsin, and that the benefits of the examination do not justify its costs.
Analysis and supporting documents used to determine effect on small business
It is anticipated that elimination of the examination will have a positive impact on small business by yielding an enlarged pool of licensed pharmacists available for hire.
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 will have no significant economic impact on a substantial number of small businesses, as defined in s.
227.114 (1)
, Stats.
Fiscal Estimate
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, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708; telephone 608-266-0495; email at
pamela.haack@wisconsin.gov
.
Text of Proposed Rule
SECTION 1. Phar 4.02 (2) is repealed.
Notice of Hearing
Public Instruction
NOTICE IS HEREBY GIVEN That pursuant to ss.
115.43 (2) (c)
and
227.11 (2) (a)
, Stats., the Department of Public Instruction will hold a public hearing to consider proposed permanent rules amending Chapter
PI 22
, relating to precollege scholarships.
Hearing Information
March 30, 2009
Madison
1:30 – 2:30 p.m.
GEF 3 Building
125 South Webster St.
Room 041
The hearing site is fully accessible to people with disabilities. If you require reasonable accommodation to access the meeting, please contact Kevin Ingram, Director, Educational Opportunity Programs and Urban Education, at
kevin.ingram@dpi.wi.gov
, (414) 227-4413, 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 April 6, 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
115.43 (2) (c)
, Stats., gives the department the authority, in consultation with postsecondary educational institutions, to promulgate rules establishing criteria for the review and approval of applications for scholarships under the precollege scholarship program.
Related statute or rule
N/A.
Plain language analysis
2007 Wisconsin Act 20
, the biennial budget bill, modified the Minority Group Pupil Precollege Scholarship Program under ss.
115.28 (23)
and
115.43
, Stats., to change the eligibility criteria from being a minority pupil to being an economically disadvantaged pupil.
The corresponding rules under ch.
PI 22
, Wis. Adm. Code, are being modified to reflect the statutory language and current administration of the program. In addition, the proposed rules clarify:
•
That precollege scholarships are
awarded
to economically disadvantaged pupils but
paid
to the postsecondary educational institution providing the precollege program in which the pupil is enrolled.
•
That the precollege program provided by the postsecondary educational institution must meet certain requirements in order to be eligible under the program.
•
That pupils do not have to apply to the department for a precollege scholarship, but must apply to a postsecondary educational institution offering a precollege program.
•
That pupils may receive three scholarship awards per year and are no longer limited to receiving only one scholarship per semester or summer.
Comparison with federal regulations
N/A
Comparison with rules in adjacent states
Illinois, Iowa, Michigan, and Minnesota do not have rules relating to scholarships for economically disadvantaged children to attend precollege programs at postsecondary educational institutions.
Summary of factual data and analytical methodologies
In addition to the modifications made as a result of
2007 Wisconsin Act 20
, modifications are made to clarify current practice and statutory intent. For instance, s.
115.43 (2) (b)
, Stats., requires that precollege scholarships be made on a competitive basis. It is unclear if it is the pupils or the postsecondary educational institutions that must compete. The current rules are also unclear. The rule modifications clarify that it is the postsecondary educational institutions that must meet certain requirements and thus "compete" for scholarship pupils to attend its institution and receive payment for those pupils.
Analysis and supporting documents used to determine effect on small business
N/A
Anticipated costs incurred by private sector
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
Under s.
20.255 (3) (fz)
, Stats., precollege scholarships are awarded to eligible pupils that attend postsecondary educational institutions offering precollege programs designed to improve pupils' academic skills necessary for success in college and technical college studies.
The rule modifies criteria and procedures for awarding scholarships under this program. The rules will have no fiscal effect on local governments or small businesses as defined in s.
227.114 (1) (a)
, Stats.
The costs associated with administering this grant program will be absorbed by the department.
Agency Contact Person
Kevin Ingram, Director
Educational Opportunity Programs and Urban Education
Phone: (414) 227-4413
