Section 31 extends the largemouth and smallmouth bass fishing season on Wisconsin-Michigan boundary waters from November 30 to December 31. This will make Wisconsin and Michigan rules consistent.
Sections 32, 33, 34, and 35 eliminate the following fish refuges: on the Chippewa flowage for 500 feet below Moose lake (Sawyer county), on Spider creek between Spider lake and State highway 77 (Sawyer county), on Island creek between Island and Black Dan lakes (Sawyer county), on Malviney creek (Sawyer county), on the unnamed tributary of Lake Chetac from Lake Chetac to 1000 feet upstream (Sawyer county), on the Brunet River from Lake Winter to 500 feet downstream (Sawyer county), on the Couderay river from the Grimh (Radisson) dam to 500 feet downstream (Sawyer county) and on the Little Turtle river and Turtle-Flambeau flowage 200 feet upstream of Popko's Circle road until 200 feet downstream of Popko's Circle road (Iron county).
Comparison with federal regulations
None known.
Comparison of similar rules in adjacent states
Fisheries management rules are generally similar in the states surrounding Wisconsin. Each bordering state regulates fishing by the use of seasons, bag limits and size limits. Specific seasons, bag and size limits may differ for species across the surrounding states; however, the general principles are similar. Michigan, Minnesota, Iowa and Illinois all have statewide seasons, bag and size limits for fish species, along with special or experimental regulations on individual waters.
Summary of factual data and analytical methodologies
Rule proposals were developed by fisheries and law enforcement staff to address management and enforcement concerns. Proposals were reviewed for need and adequacy, and approved by a fish team or law enforcement team supervisor and forwarded to regional director for approval. Proposals approved by the regions were forwarded to the Fisheries Management Bureau Director, who conducted a review with the Fisheries Management Board, law enforcement, legal services, the Wisconsin Conservation Congress, and the Great Lakes Indian Fish and Wildlife Commission. Only proposals approved by the Fisheries Management Bureau Director are included.
Analysis and supporting documents used to determine effect on small business
The proposed rules do not apply directly to businesses, but to sport anglers.
Small Business Impact
The proposed rules do not impose any compliance or reporting requirements on small businesses nor are any design or operational standards contained in the rule. The rules will be enforced by Conservation Wardens who have arrest powers and may use citations.
Fiscal Estimate
State fiscal effect
None.
Local government fiscal effect
None.
Long-range fiscal implications
N/A
Agency Contact Person
Joseph Hennessy
FM/4, 101 South Webster Street
Madison, WI 53707-7921
Phone: (608) 267-9427
Notice of Hearing
Natural Resources
Environmental Protection — Air Pollution Control,
Chs. NR 400—
NOTICE IS HEREBY GIVEN That pursuant to ss.
227.16
and
227.17
, Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing on proposed rules to create s.
NR 400.02 (162) (a) 51.
and
52.
, relating to the definition of volatile organic compound (VOC). The proposed revisions relate to issues for State Implementation Plan approvability, and the State Implementation Plan developed under s.
285.11 (6)
, Stats., will be revised.
Hearing Information
Date and Time
Location
March 12, 2010
WI DNR Building (GEF 2)
Friday
Room G09
at 1:00 PM
101 S. Webster Street
Madison, WI
Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to
Robert.Eckdale@wisconsin.gov
; or by calling (608) 266-2856. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.
Copies of Proposed Rule and Fiscal Estimate
The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the
Administrative Rules System Web site which can be accessed through the link provided on the
Proposed Air Pollution Control Rules Calendar at
http://www.dnr.state.wi.us/air/
rules/calendar.htm
. If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert B. Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster Street, Madison, WI 53703, or by calling 608.266.2856.
Submittal of Written Comments
Comments on the proposed rule must be received on or before Monday, March 22, 2010. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:
Joseph Hoch
Department of Natural Resources
Bureau of Air Management (AM/7)
101 S Webster St., Madison, WI 53703
Phone:
(608) 264-8861
Fax:
608.267.0560
Analysis Prepared by the Department of Natural Resources
Statute interpreted
Section
285.11(6)
, Stats. The State Implementation Plan developed under s.
285.11(6)
, Stats., is revised.
Statutory authority
Explanation of agency authority
Section
227.11(2)(a)
, Stats., gives state agencies general rule-making authority. Section
285.11(1)
, Stats., gives the Department the authority to promulgate rules implementing and consistent with ch.
285
, Stats. Section
285.11(6)
, Stats., requires the Department to develop a plan for the prevention, abatement and control of air pollution. The plan must conform with the Clean Air Act and federal regulations for ozone control. Since volatile organic compounds (VOC) are a precursor to ozone, having the state definition of VOC conform to the federal definition is consistent with s.
285.11(6)
, Stats.
Related statute or rule
Chapters
NR 401
to
499
reference the definitions presented in s.
NR 400.02
, Wis. Adm. Code.
Plain language analysis
The proposed rule amendment contained in this order reflects a recent conclusion by the United States Environmental Protection Agency (EPA) that dimethyl carbonate and propylene carbonate make a negligible contribution to tropospheric ozone formation. EPA excluded these two compounds from its regulatory definition of VOC through a January 21, 2009 Federal Register notice (74 FR 3437).
Currently, s.
NR 400.02 (162) (a)
, Wis. Adm. Code, lists 50 compounds that are excluded from the state regulatory definition of VOC. The Department is proposing to add dimethyl carbonate and propylene carbonate to this list to ensure consistency between state and federal definitions of VOC.
The proposed rule amendment may create an incentive for certain entities, such as paint and coating manufacturers, to use these compounds in place of other more highly reactive organic compounds thereby potentially reducing ground- level ozone concentrations.
Comparison with federal regulations
The proposed rule amendment will ensure consistency between state and federal VOC definitions.
Comparison with similar rules in adjacent states
Each of the adjacent states has exempted or is in the process of exempting these two compounds from the regulatory definition of VOC through state rulemaking processes. The following lists the expected state exemption dates for dimethyl carbonate and propylene carbonate:
Illinois
— Expected exemption January, 2010.
Iowa
— Compounds are exempt from emissions reporting starting in 2009.
Michigan
— Expected exemption late 2010.
Minnesota
— Compounds are currently exempt because EPA's VOC definition is referenced.
Summary of factual data and analytical methodologies
Since the proposed rule amendment is based on federal rule changes, the Department is relying on the factual data and analytical methodologies used by EPA to support its rule change. Information on the federal rule changes may be found in the Federal Register notice published on January 21, 2009 (74 FR 3437).
Analysis and supporting documents used to determine effect on small business
An analysis of the effect of the proposed rule amendment on small business was not performed since this change would only provide additional flexibility in allowing them to choose from additional chemical compounds.
Preparation of an economic impact report was not requested.
Small Business Impact
The proposed rule amendment is not expected to have a significant economic impact on small business because it does not impose any new regulations on them, but rather removes two compounds from the state regulatory definition of VOC. This may provide lower cost alternatives to compounds currently being used.
Environmental Analysis
The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch.
NR 150
, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.
Fiscal Estimate
The proposed changes are being done so that the Department's regulations are updated to reflect current federal regulations. These are definition changes with no fiscal impact to state and local governments, and no anticipated significant fiscal impact to the private sector.
Notice of Hearings
Public Instruction
NOTICE IS HEREBY GIVEN That pursuant to ss.
115.762 (3) (a)
and
227.11 (2) (a)
, Stats., the Department of Public Instruction will hold public hearings to consider proposed permanent rules amending section
PI 11.36 (6)
, relating to the identification of children with specific learning disabilities.
Hearing Information
The hearings will be held as follows:
Date and Time
Location
March 16, 2010
Madison
4:00 - 7:00 p.m.
GEF 3 Building
125 South Webster St.
Room 041
March 18, 2010
Oshkosh
4:00 - 7:00 p.m.
CESA 6
2300 State Road 44
Conference Room
April 7, 2010
Chippewa Falls
4:00 - 7:00 p.m.
CESA 10
725 West Park Ave.
Conference Room
April 14, 2010
Brookfield
4:00 - 7:00 p.m.
CESA 1
19601 Bluemound Road
Room A
The hearing sites are fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call Vaunce Ashby, Specific Learning Disability Educational Consultant at (608) 267-2841 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 and Submittal of Written Comments
Lori Slauson, Administrative Rules and Federal Grants Coordinator
Department of Public Instruction
125 South Webster Street — P.O. Box 7841
Madison, WI 53707
Written comments on the proposed rules received by Ms. Slauson at the above mail or email address no later than April 23, 2010, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by the Department of Public Instruction
Statute interpreted
Statutory authority
Explanation of agency authority
Section
115.762 (3) (a)
, Stats., requires the department to ensure that all children with disabilities are identified, located and evaluated.
Section
227.11 (2) (a)
, Stats., gives an agency rule-making authority to interpret the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute.
Related statute or rule
Chapter
PI 11
, Wis. Adm. Code.
Plain language analysis
In 2004, the Individuals with Disabilities Education Act (IDEA) modified the evaluation procedures for the identification of children with specific learning disabilities (SLD) under
20 U.S.C. 1414
(b) (6). As specified in IDEA, the evaluation procedures relating to the identification of specific learning disabilities provide that: States may not require the use of significant discrepancy as part of a determination of SLD, and must permit the use of a process based on a child's responses to scientifically-based intervention as part of its determination of SLD. This proposed rule clarifies the insignificant progress component commonly known as scientific, research-based or evidence-based interventions and the interventions' integrity. The IEP team needs to include a person qualified to assess data on a pupil's individual rate of progress, who has implemented a scientific, research-based or evidenced-based intervention with that pupil, and who has observed the pupil while he or she is receiving the intervention. If an existing IEP team member can fulfill these roles, an additional team member is unnecessary.
IDEA also added reading fluency skills as an area of identification for SLD. Because the department's current rule under s.
PI 11.36 (6)
, relating to specific learning disabilities is not consistent with the federal requirements, the rule will be recreated to align with the U.S. Code. The proposed rules will allow a five-year period during which a school district "is permitted but not required" to continue to use the significant discrepancy formula in identifying children with SLD. After that five-year period, the significant discrepancy formula may not be used.
The department submitted a rule modifying the SLD criteria and significant developmental delay (SDD) criteria to the Legislative Clearinghouse for review on June 4, 2007 (See CHR 07-058). The SLD criteria has changed significantly from the version in CHR 07-058, and therefore, is being re-submitted for Clearinghouse review and public hearings. The information relating to the SLD criteria will be removed from CHR 07-058 before the rule is submitted to the chief clerk of each house of the legislature in final draft form
under s.
227.19 (2)
, Stats.
Comparison with federal regulations
The proposed rules reflect the SLD language under 34 ss. CFR 300.307 to 300.311 as authorized under 20 U.S.C. s. 1221e-3, 1401 (30), and 1414 (b) (6). In addition, the rule clarifies the insignificant progress component commonly known as scientific, research-based or evidence-based interventions and the interventions' integrity. The IEP team needs to include a person qualified to assess data on a pupil's individual rate of progress, who has implemented a scientific, research-based or evidenced-based intervention with that pupil, and who has observed the pupil while he or she is receiving the intervention. If an existing IEP team member can fulfill these roles, an additional team member is unnecessary.
Comparison with rules in adjacent states
Illinois:
Beginning in 2010-2011 Illinois will require school districts to use a process based on a child's response to scientific, research-based interventions as part of SLD evaluation.
Iowa:
Beginning August, 2010, Iowa will require the use of a process based on the child's response to scientific, research-based intervention or the use of other alternative research-based approaches and prohibits the use of a severe discrepancy between intellectual ability and achievement.
Michigan:
Language going to public hearings in November, 2009 proposes the use of methods for determining SLD eligibility based on the use of scientific, research-based interventions and patterns of strengths and weaknesses. At this point the discrepancy model or a sunset clause is not mentioned.
Minnesota:
The SLD criteria states that the child does not achieve adequately, has a disorder in one or more of the basic psychological processes, and the demonstration of a severe discrepancy or the demonstration of inadequate rate of progress.
Summary of factual data and analytical methodologies
In 2004, the Individuals with Disabilities Education Act (IDEA) modified the evaluation procedures for the identification of children with specific learning disabilities (SLD) under
20 U.S.C. 1414
(b) (6). As specified in IDEA, the evaluation procedures relating to the identification of specific learning disabilities provide that: 1) States may not require the use of significant discrepancy as part of a determination of SLD, 2) States must permit the use of a process based on a child's responses to scientifically-based intervention as part of its determination of a SLD, and 3) States may permit the use of other alternative research-based procedures to determine whether a child has a SLD. IDEA also added reading fluency skills as an area of identification for SLD. Because the department's current rule under s.
PI 11.36 (6)
, relating to specific learning disabilities is not consistent with the federal requirements, the rule will be modified to align with the U.S. Code. The proposed rules will allow a five-year period during which a school district "is permitted but not required to" continue to use the significant discrepancy formula in identifying children with SLD.
Analysis and supporting documents used to determine effect on small business
N/A
Small Business Impact
The proposed rules will have no significant economic impact on small businesses, as defined in s.
227.114 (1) (a)
, Stats.
Fiscal Estimate
Summary
The proposed rules modify eligibility criteria used to identify children with specific learning disabilities (SLD) to be consistent with federal requirements. The federal requirements now specify state local education agencies (LEAs) shall not be required to consider a severe discrepancy and must permit the use of a process based on child's response to scientific, researched-based intervention in determining whether a child has an SLD. This rule modification should not result in altering the size of the population of children identified as having a disability. Wisconsin must comply with federal requirements in order to remain eligible to receive more than $200 million in federal IDEA funds.
State fiscal effect
None.
Local government fiscal effect
None.
Anticipated costs incurred by private sector
N/A
Agency Contact Person
Stephanie Petska, Director, Special Education
Phone: (608) 266-1781
Notice of Hearing
Workforce Development
Unemployment Insurance, Chs. DWD 100-150
NOTICE IS HEREBY GIVEN that pursuant to ss.
108.14 (2)
and
227.11 (2) (a)
, Stats., the Department of Workforce Development proposes to hold a public hearing to consider rules revising Chapter
DWD 128
, relating to unemployment insurance rules for determining a claimant's ability to work and availability for work and affecting small businesses.
Hearing Information
Date and Time
|
Location
|
March 12, 2010
|
MADISON
|
Friday
|
G.E.F. 1 Building, H306
|
9:00 a.m.
|
201 E. Washington Avenue
|
Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.
Copies of Proposed Rule
An electronic copy of the proposed rules is available at
http://adminrules.wisconsin.gov
. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule or fiscal estimate by contacting: Tracey Schwalbe, Research Attorney, Unemployment Insurance Bureau of Legal Affairs, Department of Workforce Development, P.O. Box 8942, Madison, WI 53708.
Appearances at Hearing and Submittal of Written Comments
Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
Written comments on the proposed rules received at the above address, email, or through the
http://adminrules. wisconsin.gov
web site no later than March 12, 2010, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by Department of Workforce Development
Statutory authority
Statutes interpreted
Related statutes and rules
Explanation of agency authority
To be eligible to receive unemployment insurance benefits, an individual must, in addition to other requirements, be "able" to perform suitable work and be "available" for suitable work.
Section
108.04 (2) (a) 1.
, Stats., provides that a claimant shall be eligible for benefits for any week of total unemployment only if the claimant is able to work and available for work during the week.
Section
108.04 (1) (b) 1.
, Stats., provides that an employee is ineligible for benefits while the employee is unable to work, or unavailable for work, if his or her employment with an employer was suspended by the employee or by the employer or was terminated by the employer because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, or if the employee was on a leave of absence, except in certain circumstances.
Section
108.04 (7) (c)
, Stats., provides that the disqualification for an employee's voluntary termination of work does not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work, or if the employee terminated his or her work because of the health of a member of his or her immediate family; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while the inability or unavailability continues.
Section
108.04 (8) (e)
, Stats., provides that if an employee fails to accept suitable work with good cause or return to work with a former employer that recalls the employee with good cause, but the employee is unable to work or unavailable for work, the employee shall be ineligible for the week in which the failure occurred and while the inability or unavailability continues.
Section
108.14 (2)
, Stats., provides that the department may adopt and enforce all rules which it finds necessary or suitable to carry out Chapter
108
, Stats., regarding unemployment insurance.
Plain language analysis
Under the current Chapter
DWD 128
, a claimant is considered "able" to work if the claimant is able to perform "any" suitable work. Suitable work is defined as work that is reasonable considering the claimant's training, experience, and duration of unemployment as well as the availability of jobs in the labor market. DWD §
100.02 (61)
. If interpreted literally, this provision would mean that if a claimant can show that there is a single job that exists in the labor market that the claimant can do despite his or her restrictions, the claimant may be considered "able" to work within the meaning of the rule.
Under the current rule, one of the factors applied to determine whether a claimant is "able" to work is "whether the claimant could be qualified to perform other work within the claimant's restrictions with additional training." The Department has observed that this factor operates as an exception to ability to work and availability for work to an extent that is inconsistent with the basis for the "able and available" requirements -- attachment to the labor market. The application of this factor may yield results that negate the rule by excusing the claimant's inability to work and unavailability for work during a period of training that is not "approved training" under the statutory exception to able and available, s.
108.04(16)
, Stats. The rule contains no limitation on the nature and extent of the training involved and might be read to excuse inability to work in cases in which the training period will be lengthy or open-ended. Deleting the factor contained in section 128.01 (3)(d) will not diminish the exception to the able to work and available for work requirements for weeks during which the claimant is enrolled in approved training under s.
108.04(16)
, Stats., which serves as an exception to all of the able and available requirements.
The language of the rule requiring that the claimant be "available for work" has been interpreted in a manner that is inconsistent with the intent of the rule. Currently, the rule provides that for a claimant to be "available" for work, the claimant must be available for full-time suitable work (32 hours per week). If a claimant has physical restrictions that limit the number of hours he or she can work to less than full-time work (32 hours per week), the claimant may not be found "available" for work. This result was not intended. Under the rule prior to its last revision, a claimant with a physical or psychological restriction that limited the number of hours the claimant was able to work was considered "available" for work if the claimant was available to work at least the number of hours of work as the claimant was "able" to work.
The Department proposes to amend the test for "able to work" by eliminating the word "any" from the second sentence of DWD 128.01(3). The Department proposes to delete the factor allowing consideration of whether the claimant could be qualified by additional training. These amendments will restore the focus on the factors most relevant to physical restrictions and residual capacity and assure that there is a genuine attachment to the labor market.
The Department proposes that to the extent that a worker has limitations on the number of hours she/he is able to work that are due to physical or psychological restrictions, she/he will not be regarded as unavailable for work if she/he is as available for work as the person is able to work.
The intent of the unemployment statute and rules is that
all
claimants must be able to work and available for work. The current language of DWD 128.01 (7) appears to suggest that a claimant who is partially unemployed
need not meet the "able and available" requirement unless
"there is a definite indication that the claimant is not genuinely interested in working full-time" or the claimant missed work available with a current employer. The Department proposes to repeal this provision to assure that the standard is applied uniformly.
In
2009 Wis. Act 11
, the Legislature amended the exception to the quit disqualification that is applied when an individual quits work to care for an ill or disabled family member. sec. 108.04(7)(c), Stats. The amendment was adopted to comply with the requirements for unemployment insurance modernization incentive funds as provided in the Assistance for Unemployed Workers and Struggling Families Act, Title II of Division B of P.L.
111-5
, enacted February 17, 2009. The exception no longer requires that the claimant must demonstrate that he or she had "no reasonable alternative" to quitting. A claimant now must demonstrate that the immediate family member has a verified illness or disability that necessitates care for a period of time that is longer than the employer is willing to grant leave. The language in the current rule requires that for a claimant to be considered available for work, a claimant caring for a family member must demonstrate that the condition requires "essential" care that is "uniquely and actually" provided by the claimant. s.
DWD 128.04(1)(a)2.
The Department is concerned that the words "essential" and "uniquely and actually" may constitute a "no reasonable alternative" standard for availability. Under the current rule, a claimant may quit a job to care for a family member, but could be found unavailable for work on the required shifts because the claimant did not need to provide the care and had other alternatives. This interpretation is contrary to the intent of the statutory amendment. The Department proposes to amend this provision to be consistent with the amended quit exception in sec. 108.04(7)(c), Stats.
These amendments are consistent with the Department's intent in adopting the revisions to DWD 128 that took effect in April 2008. Those revisions made a very substantial change to Wisconsin's unique approach to the "able and available" requirements. The intent was to move to a concept more like that found in other states.
Comparison with federal regulations
The Department of Labor issued a rule on the able and available requirement on January 16, 2007. The federal rule codified the longstanding interpretation that the Social Security Act and the Federal Unemployment Tax Act require states to limit payment of unemployment insurance to individuals who are able and available for work. This interpretation had not previously been comprehensively addressed in the federal regulations.
The federal regulation provides that a state may consider an individual to be able to work during the week of unemployment claimed if the individual is able to work for all or portion of the week, provided any limitation on his or her ability to work does not constitute a withdrawal from the labor market.
A state may consider an individual to be available for work during the week of unemployment claimed under any of the following circumstances: (1) the individual is available for any work for all or a portion of the week, provided any limitation does not constitute a withdrawal from the labor market; (2) the individual limits his or her availability to work which is suitable as determined under state law; and (3) the individual is on temporary lay-off and is available to work only for the employer that has temporarily laid-off the individual.
A state may consider an individual available for work if the state finds the individual able to work despite illness or injury.
A state must not deny unemployment benefits to an individual for failure to be available for work if the individual is in approved training. An alien must be legally authorized to work to be considered available for work in the United States.
Comparison with rules in adjacent states
Iowa's rules provide that to be able to work an individual must be physically and mentally able to work in some gainful employment, not necessarily in the individual's customary occupation. An individual must be able to work in some reasonably suitable, comparable, gainful, full-time endeavor, other than self-employment, which is generally available in the labor market where the individual resides. An individual is available for work if he or she if willing, able, and ready to accept suitable work which the individual does not have good cause to refuse. An individual may have shift restrictions if the individual is available for the same shift in which his or her wage credits were earned and the individual has a reasonable expectation of securing employment. If a part-time worker is available to the same degree and to the same extent as when his or her wage credits were earned, the individual meets the availability requirement. An individual is available while serving on jury duty. An individual may not be eligible for benefits if the individual has imposed restrictions that leave the individual with no reasonable expectation of securing employment, including restrictions such as type of work, hours, wages, location, or physical restrictions.
The Illinois rules provide that an individual is able to work when physically and mentally capable of performing work for which the individual is otherwise qualified. The focus for ability to work is on the individual's condition; the employers' willingness to hire is irrelevant. The focus also is on any work the individual is currently qualified for and can perform, and is not limited to the individual's usual or most recent job. The rule provides that the best evidence that an individual is able to work in a particular occupation is that the individual has performed such work. An individual is available for work unless a condition so narrows opportunities that he has no reasonable prospect of securing work. An individual is unavailable if: domestic circumstances prevent an individual from working during "normal" days and hours in the occupation, the individual demands a wage that is unreasonable, the individual unreasonably restricts the distance the individual is willing to travel to work, or an individual's personal habits are inconsistent with the type of work the individual is seeking. An individual will not be unavailable for refusing to consider work that would violate sincerely held religious or moral convictions. If the individual is self-employed, availability depends on the nature and extent of the self-employment. Whether a seasonal worker is available during the off-season is determined by whether there is some prospect of obtaining work in the individual's customary occupation. When an individual appears to be imposing a condition on acceptance of work, it must be established whether this is a preference or an actual condition on availability. The best evidence that an individual is available for work is that the individual readily secures work despite the imposition of a condition.
Michigan and Minnesota do not have rules on ability and availability for work.
Summary of factual data and analytical methodologies
The Department prepared preliminary statistics of the experience with DWD 128 from April 2008, when the revised rule became effective, and September 2008. These statistics were presented to the Unemployment Insurance Advisory Council at its meeting on October 2, 2008. Although these reflect experience with the rule over a short period of time, the statistics and the anecdotal experience with adjudicators and decisions from administrative law judges show that decisions finding claimants "able" under the new rule have increased, and there have been decisions denying benefits to claimants who are not "available" for full-time suitable work (32 hours per week) because of physical restrictions that limit the hours they are able to work.
Analysis used to determine effect on small businesses
The proposed rule will alter somewhat how the department will determine whether a claimant is able and available for work. The proposed rule does not add or change any requirements for small businesses. There are no reporting, bookkeeping, or other procedures required for compliance with the proposed rule and no professional skills are required of small businesses.
Small Business Impact
The rule will affect small businesses but will not have a significant economic impact on a substantial number of small businesses.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate
No fiscal effect is expected from the proposed amendments beyond that anticipated in
2009 Wisconsin Act 11
regarding the exception to disqualification for quitting a specific job in order to care for an ill or disabled family member, provided that the claimant remains available for other full time work. Field office staff estimated that approximately 100 claimants in any given year would be allowed benefits as a result of the less stringent requirements in Act 11. Based on benefits received by a sample of those excepted from disqualification prior to passage of Act 11, it was further estimated that total Unemployment Insurance benefit expenditures would increase by approximately $100,000 as a result of the less stringent requirements. Of the $100,000, it is estimated that $1,000 in increased expenditures will be experienced by state government, $2,000 by local units of government, and $97,000 by private employers. No fiscal effects are expected from the other proposed amendments to the rule as these are clarifying or corrective of the intent of the rule as originally passed and analyzed.
State fiscal effect
Increase costs. May be possible to absorb within agency's budget.
Local government fiscal effect
Mandatory increase in costs.
Types of local governmental units affected
Towns, Villages, Cities, Counties, School Districts, WTCS Districts.
Fund sources affected
GPR, FED, PRO, PRS, SEG SEG-S.
Agency Contact Person
Daniel LaRocque, Director
Bureau of Legal Affairs
Phone: (608) 267-1406
Notice of Hearing
Workforce Development
Unemployment Insurance, Chs. DWD 100-150
NOTICE IS HEREBY GIVEN that pursuant to ss.
108.08 (1)
,
108.14 (2)
and
227.11 (2) (a)
, Stats., the Department of Workforce Development proposes to hold a public hearing to consider rules revising Chapter
DWD 129
, relating to unemployment insurance rules for benefit claiming procedures.
Hearing Information
Date and Time
|
Location
|
March 12, 2010
|
MADISON
|
Friday
|
G.E.F. 1 Building, H306
|
10:30 a.m.
|
201 E. Washington Avenue
|
Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.
Copies of Proposed Rule
An electronic copy of the proposed rules is available at
http://adminrules.wisconsin.gov
. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule or fiscal estimate by contacting: Tracey Schwalbe, Research Attorney, Unemployment Insurance Bureau of Legal Affairs, Department of Workforce Development, P.O. Box 8942, Madison, WI 53708,
Appearances at Hearing and Submittal of Written Comments
Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
Written comments on the proposed rules received at the above address, email, or through the
http://adminrules. wisconsin.gov
web site no later than March 12, 2010, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by the Department of Workforce Development
Statutory authority
Statutes interpreted
Related statutes
Not applicable
Explanation of agency authority
Section
108.08 (1)
, Stats., provides that to receive unemployment insurance benefits for any given week of unemployment, a claimant shall give notice to the department with respect to such week of unemployment within such time and in such manner as the department may by rule prescribe.
Section
108.14 (2)
, Stats., provides that the department may adopt and enforce all rules which it finds necessary or suitable to carry out Chapter
108
, Stats., regarding unemployment insurance.
Plain language analysis
Section
108.08 (1)
, Stats., provides that to receive unemployment insurance benefits for any given week of unemployment, a claimant shall give notice to the department with respect to such week of unemployment within such time and in such manner as the department may by rule prescribe. Chapter
DWD 129
was amended recently, with changes effective January 1, 2007. Since that time, appeal tribunal decisions have interpreted the provisions of the rule relating to resuming claims and filing weekly certifications in ways that were not intended by the rule. The proposed changes to the rule are to clarify the intent of the process for resuming claims and the interplay of the different time limits for filing initial/resumed claims and continuing weekly certifications. By simplifying the language of the rule, the department hopes to reduce the risk of further unintended interpretations of the rule.
Initiating a claim.
Section
DWD 129.01 (1)
currently provides that a claimant is eligible only if, as of the first week being claimed, the claimant notifies the department by telephone, internet, or as otherwise prescribed by the department, during that week or within 7 days after the close of that week, of the claimant's intent to initiate the claim. The rule basically provides that all initial claims can be backdated one week.
Continuing a claim.
Section
DWD 129.01 (2)
describes the requirements for continuing a claim by filing timely weekly certifications. The current rule provides that the claimant is eligible for benefits for any week only if the claimant files a weekly certification with the department by telephone, internet, mail, or as otherwise prescribed by the department, within 14 days following the end of the week for which benefits are claimed. The rule basically provides that to be able to continue a claim, a claimant has up to two weeks to file a weekly certification for a week being claimed.
Resuming a claim.
The current rule provides that if a weekly certification is not filed for a benefit week as described in s.
DWD 129.01 (2)
to continue a claim, the claim becomes inactive as of the first week after the last week in which a timely weekly certification could have been filed for the missed week. In order to resume a claim after it has become inactive, a claimant must file a new initial claim. The section on initiating a claim provides that these initial/resumed claims can be backdated one week. The intent of the rule was not to allow claimants to reach back two weeks to file a continued weekly certification once a claim has become inactive, however, appeal tribunals have not consistently read the rule to reach this result and have allowed claimants to reach back two or more weeks to file continued weekly certifications after a claim has become inactive.
The proposed rule will clarify the language of the rule. The proposed rule will combine the repetitive language in DWD 129.01 (2) (b) 1.-4. The proposed rule will clarify that a claimant cannot file a timely weekly certification for any week once the claimant has missed filing a timely weekly certification for a week. The department provides two examples to show how the clarified language should be interpreted.
In addition, DWD 129.05 is amended to authorize payment of benefits by debit cards issued by the department.
Comparison with federal regulations
There are no federal standards or regulations for unemployment insurance benefits regarding filing or notice requirements.
Comparison with rules in adjacent states
Minnesota:
Applications for unemployment benefits are effective the Sunday of the calendar week in which the completed application is submitted. Applications and weekly certifications may be submitted by Internet, telephone, or mail. An account that has become inactive may be reactivated effective the Sunday of the calendar week in which the account was reactivated.
Iowa:
An initial claim may be filed by telephone, in person, or by other means prescribed by the department. Claims are deemed filed as of Sunday of the week in which the claim is filed. A claimant must generally complete a voice response telephone claim to continue benefits.
Michigan:
The Michigan administrative rules provide that a claimant shall file an initial claim, continued claim, or resumed claim as directed by the agency. To be considered a timely filing and effective as of the beginning of the claimant's first week of unemployment, a new claim shall be received by the agency not later than the Friday after the end of the week containing the claimant's last day of work. A continued claim shall be received by the agency not later than the Friday after the end of the last week of the period for which the claimant is instructed to report. A resumed claim is effective as of the beginning of the week in which it is received by the agency. If a claimant does not file a new, continued, or resumed claim pursuant to these deadlines but files the new or resumed claim not later than the 14
th
day after these time limits, the claim is consider filed on time if the claimant has good cause for the lateness of the filing.
Illinois:
An initial claim for benefits must be filed in person at the local office unless a claimant is otherwise instructed by the agency. An initial claim for benefits should be filed no later than the end of the first week in which the claimant is separated from work and the claim shall begin in the week in which it was filed. Filing by mail may be allowed for claimants with special circumstances, such as lack of transportation or physical disabilities. Claimants generally file a certification for continuing benefits by telephone. Claimants are given a certification day in which they call and respond to questions concerning their claims for the prior 2 weeks. If the claimant misses the certification day, a call may be placed on Thursday or Friday of that week, or on the designated certification day or Thursday or Friday of the next week. Filing a certification by mail may be allowed in special circumstances, such as language issues, hearing impairment, or lack of access to a touch tone phone.
Summary of factual data and analytical methodologies
The interpretations of the rule that were not intended were brought to the attention of the department through appeal tribunal decisions and discussions with administrative law judges regarding the interpretation of the rule provisions. The department has analyzed the proposed rule language through examples and by seeking comments on the proposed rule language from administrative law judges.
Analysis used to determine effect on small businesses
The proposed rule will clarify the current process of filing continued weekly certifications and resumed claims. The proposed rule does not add or change any requirements for small businesses.
Small Business Impact
The proposed rules do not add or change any requirements for small businesses. There are no reporting, bookkeeping, or other procedures required for compliance with the proposed rule and no professional skills are required.
Fiscal Estimate
State fiscal effect
None.
Local government fiscal effect
None.
Agency Contact Person
Daniel LaRocque, Director
Bureau of Legal Affairs
Phone: (608) 267-1406
