Michigan:
Effective October 1, 2000, Michigan offers external review for adverse determinations based upon medical necessity that are unresolved internally by the plan. 2000 PA 251, MCL 550.1911
Minnesota:
Effective 2000 Minnesota enacted law that provider external review relating to medical necessity determinations from managed care plans and indemnity carriers. Minn. Stat. 72A.327. The law does not include external review for preexisting condition denials or rescission determinations and assumes denials arise from utilization review only.
Summary of factual data and analytical methodologies
The commissioner created a working group to assist in the development of the proposed rule. The working group included representatives from the insurance industry, independent review organizations, consumer advocates and the public and staffed by the office including the managed care specialist whose duties include the oversight of independent review organizations. Meetings were held monthly between September and December. The working group considered information regarding the number of complaints the office receives annually relating to preexisting condition exclusions and rescissions when developing its recommendation to the commissioner. In addition, the consumer representatives provided current case law and issues seen from constituents.
The working group unanimously made its recommendations to the commissioner and those recommendations are reflected in the proposed rule.
Analysis and supporting documents used to determine the effect on small businesses
The office reviewed the number and type of complaints relating to preexisting condition exclusion denials and rescissions. Annually there are less than 10 rescissions in the state. Although more preexisting condition exclusion denials occur the frequency is still very low. The independent review organizations are certified by the commissioner's designee to conduct independent reviews in the state and several are small businesses, however the additional cost, if any, will be primarily borne by large insurers not the independent review organizations. The proposed rule places few additional requirements on the independent review organizations and in clarifying what is and is not eligible for reviews, the costs incurred will be limited. Finally, it was noted during the rule development process at the working group that most independent review organizations already have access to lawyers as needed so there is no additional cost associated with the proposed requirement.
Small Business Impact
This rule will have little or no effect on small businesses.
Small business regulatory coordinator
The OCI small business coordinator is Eileen Mallow and may be reached at phone number (608) 266-7843 or at email address
eileen.mallow@wisconsin.gov
Fiscal Estimate
State fiscal effect
None.
Local government fiscal effect
None.
Private sector fiscal effect
None.
Agency Contact Person
Inger Williams, OCI Services Section
Phone:
(608) 264-8110
Address:
125 South Webster Street,
2
nd
Floor, Madison WI 53703-3474
Mail:
PO Box 7873
Madison, WI 53707-7873
Notice of Hearing
Natural Resources
Fish, Game, etc., Chs. NR 1—
NOTICE IS HEREBY GIVEN that pursuant to sections
23.09 (2) (intro)
,
23.091
,
23.11 (1)
,
23.22 (2) (a)
and
(b) 6.
,
23.28 (3)
,
27.01 (2) (j)
,
29.014 (1)
,
29.039 (1)
29.041
, and
227.11 (2) (a)
, Stats., the Department of Natural Resources will hold a public hearing on proposed revisions to Chapter
NR 40
, Wis. Adm. Code, relating to the identification, classification and control of invasive species. The proposed revisions are "housekeeping" in nature.
Hearing Information
The hearing will be held:
March 11, 2010
Room G-09
Thursday
Wis. Natural Resources Bldg.
at 10:00 a.m.
(GEF 2), 101 S. Webster Street
Madison, Wisconsin
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Ms. Kelly Kearns at (608) 267-5066 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed Rule and Submittal of Written Comments
The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov
. Written comments on the proposed rule may be submitted by U.S. mail to Ms. Kelly Kearns, Bureau of Endangered Resources, Department of Natural Resources, PO Box 7921, Madison, WI 53707-7921 or email to
DNRNR40Comments@wisconsin.gov
. Written comments may be submitted until March 21, 2010. Written comments, whether submitted electronically or by U.S. mail, will have the same weight and effect as oral statements presented at the public hearing. A personal copy of the proposed rule and fiscal estimate may be obtained from Ms. Kearns.
Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Explanation of agency authority
The principal authority for the department's invasive species rules is s.
23.22 (2) (a)
and
(b) 6.
, Stats., which requires the department to establish a statewide program to control invasive species in this state and directs the department to promulgate rules to identify, classify and control invasive species for purposes of the program, which may include procedures and requirements for issuing permits to control invasive species. In order to fulfill this broad duty, the department adopted ch.
NR 40
to provide it with all of the tools that are required to control invasive species, wherever found in the state, including regulation of the possession, transportation, transfer and introduction of specific invasive species, general preventive measures designed to restrict pathways by which humans commonly spread or introduce invasive species, authority to enter property in order to inspect, survey and control invasive species, and authority to recover the state's costs when it must carry out necessary control measures because responsible parties do not comply with department orders to control invasives themselves.
Section
23.11 (1)
, Stats., delegates to the department such further powers as may be necessary or convenient to enable it to exercise the functions and perform the duties required of it by ch.
23
, Stats., and by other provisions of law.
Invasive species have caused environmental and economic damage and threaten human health, and will continue doing so unless adequate control measures are adopted and implemented. The general legislative delegation to the department of all necessary or convenient powers set out in s.
23.11 (1)
, Stats., combined with the broad directive in s.
23.22 (2) (a)
and
(b) 6.
, Stats., to control invasive species in this state give the department sufficient power to adopt and revise as needed rules for the protection of public health, safety, welfare and the environment, but particularly for the promotion of public welfare, convenience and general prosperity. The department's exercise of legislatively delegated police powers, as embodied in its invasive species rules, has its basis in the inherent power and duty of government to protect and promote the life, comfort, safety and welfare of society.
Section
23.09 (2) (intro)
, Stats., grants the department general authority to adopt rules for the protection, development and use of forests, fish and game, lakes, streams, plant life, flowers and other outdoor resources in this state. Section
23.091
, Stats., authorizes the department to acquire, develop, operate and maintain state recreation areas, to establish use zones within state recreation areas providing for the full range of recreational uses, including hunting and fishing, and to promulgate rules to control uses within zones and limit the number of persons using any zone. Section
23.11 (1)
, Stats., gives the department the authority to have and take the general care, protection and supervision of all state parks, of all state fish hatcheries and lands used therewith, of all state forests, and of all lands owned by the state or in which it has any interests.
Section
23.28 (3)
, Stats., prohibits the department from allowing any use of a designated state natural area which is inconsistent with or injurious to its natural values, and authorizes the department to establish use zones, control uses within a zone and limit the number of persons using zones in designated state natural areas. Section
27.01 (2) (j)
, Stats., grants the department authority to promulgate rules necessary to govern the conduct of state park visitors, and for the protection of state park property, or the use of facilities, including the use of boats and other watercraft on lakes or rivers within the limits of a state park, and the use of roads, trails or bridle paths.
Section
29.014 (1)
, Stats., directs the department to establish and maintain any bag limits and conditions governing the taking of fish that will conserve the fish supply and ensure the citizens of this state continued opportunities for good fishing. Section
29.039 (1)
, Stats., authorizes the department to develop conservation programs to ensure the perpetuation of nongame species, require harvest information and establish limitations relating to taking, possession, transportation, processing and sale or offer for sale, of nongame species. "Nongame species" is defined as any mammal, bird, fish, or other creature of a wild nature endowed with sensation and the power of voluntary motion that is living in the wild and that is not classified as a game fish, game animal, game bird or furbearing animal. Section
29.041
, Stats., provides that the department may regulate fishing on and in all interstate boundary waters, and outlying waters.
Finally, s.
227.11 (2) (a)
, Stats., expressly confers rulemaking authority on the department to promulgate rules interpreting any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute. The department considers the rules created by this Order to be necessary to effectuate the purposes of s.
23.22
, Stats.
Related statute or rule
Related statutes or rules include but are not limited to the following provisions which, to varying degrees, may apply to the identification, classification, control or other regulation of species that are invasive, or to conduct that may result in the introduction or spread of invasive species:
Statutory section — Title [or subject]
15.347 (18)
Invasive species council.
23.093
Carp control research.
23.235
Nuisance weeds.
23.24
Aquatic plants.
26.20 (4)
[Railroad right-of-way annual weed removal]
26.30
Forest insects and diseases; department
jurisdiction; procedure.
27.019 (7) (c) [County rural planning - highways only
native plantings allowed]
27.05 (5) and (7) [County authority to manage plants and
control weeds in county waters, parks and county
lands]
29.011
Title to wild animals.
29.047
Interstate transportation of game.
29.053
Specific open and closed seasons.
29.055
Wild animals; possession in closed season or in
excess of bag limit.
29.057
Wild animals; possession in open season.
29.089
Hunting on land in state parks and state fish
hatcheries.
29.091
Hunting or trapping in wildlife refuge.
29.192
Regulation of takings of certain wild animals.
29.301
General restrictions on hunting.
29.307
Hunting with aid of aircraft prohibited.
29.314
Shining animals.
29.327
Regulation of waterfowl blinds.
29.331
Trapping regulation.
29.334
Hunting and trapping; treatment of wild animals.
29.335
Feeding wild animals for nonhunting purposes.
29.337
Hunting and trapping by landowners and
occupants.
29.354
Possession of game birds and animals.
29.407
Transportation of fish.
29.414
Erection of barriers to exclude rough fish.
29.417
Permit to take rough fish.
29.421
Removal of rough fish.
29.424
Control of detrimental fish.
29.509
Bait dealer license.
29.516
Fishing with nets and setlines.
29.601
Noxious substances.
29.604
Endangered and threatened species protected.
29.614
Scientific collector permit.
29.627
Domestic fur–bearing animal farms.
29.701
Propagation of fish; protected wild animals.
29.705
Propagation of fish; removal of fish.
29.733
Natural waters used in fish farms.
29.734
Barriers required for fish farms.
29.735
Importation of fish.
29.736
Stocking of fish.
29.737
Permit for private management.
29.738
Private fishing preserves.
29.741
Food in the wild for game birds.
29.875
Disposal of escaped deer or elk.
29.885
Removal of wild animals.
29.887
Wildlife control in urban communities.
29.924
Investigations; Searches.
29.927
Public nuisances.
29.931
Seizures.
29.934
Sale of confiscated game and objects.
30.07
Transportation of aquatic plants and animals;
placement of objects in navigable waters.
30.1255
Report on control of aquatic nuisance species.
59.70 (17) and (18) [County funds, equipment, fees for pest
and weed control, plant or animal diseases.]
66.0407
Noxious weeds. [local governments]
66.0517
Weed commissioner. [local governments]
66.0627
Special charges for current services. [charges for
weed elimination]
84.07 (3)
[DOT highway patrol officers to destroy noxious
weeds on highways]
93.07
Department duties. [Dept. of Agriculture, Trade
and Consumer Protection - pests]
94.01
Plant inspection and pest control authority.
94.02
Abatement of pests.
94.03
Shipment of pests and biological control agents;
permits.
94.10
Nursery stock; inspection and licensing.
94.38
Agricultural and vegetable seeds; definitions.
94.41
Prohibitions. [Sale or distribution of noxious weed
seed]
94.45
Powers and authority of the department.
94.46
Stop sale; penalties; enforcement.
94.69
Pesticides; rules.
94.76
Honeybee disease and pest control.
146.60
Notice of release of genetically engineered
organisms into the environment.
169.04
Possession of live wild animals.
169.06
Introduction, stocking, and release of wild
animals.
169.07
Exhibition of live wild animals.
169.08
Propagation of wild animals.
169.10
Sale and purchase of live wild animals.
169.11
Harmful wild animals.
169.36
Record–keeping and reporting requirements.
182.017
Transmission lines; privileges; damages.
[utility weed control along transmission lines]
281.17 (2) [DNR to supervise chemical treatment of waters
for the suppression of nuisance–producing
organisms that are not regulated by the program
established under s.
23.24 (2)
.]
237.10
Rapide Croche lock [Fox river lamprey barrier]
Plain language analysis
The proposed rule makes several "housekeeping" changes to ch.
NR 40
relating to the identification, classification and control of invasive species.
SECTION 1. of the proposed Order creates a definition for the term "aquatic invasive species." The definition is needed for clarification of an existing rule that authorizes the department to remove detrimental fish and other aquatic invasive species from waters of the state.
SECTION 2. revises the current definitions of "established" and "propagules," to clarify that they apply to organisms other than plants, such as disease-causing microorganisms. It also modifies the definition of "wild animal" to clarify that crayfish as well as fish are excluded from that term, consistent with the regulatory approach taken in the rest of ch.
NR 40
regarding invasive fish and crayfish species.
SECTIONS 3. and 8. of this proposed Order revise the descriptions of the boundary lines for 6 split-listed invasive plant species (i.e., plants that are listed both as "prohibited" in one part of the state and as "restricted" in another part of the state). In order to be consistent with other split-listed invasive plant species described in ch.
NR 40
, the prohibited and restricted area descriptions for these 6 plants are changed from areas marked by boundary lines consisting of highways to areas that are defined by named counties. SECTIONS 3. and 8. also revise the "prohibited" and "restricted" invasive plant species listings for
Conium maculatum
(Poison hemlock). The plant currently is listed as "prohibited" in all counties except Iowa and Grant counties, where it is listed as "restricted." The plant's status in Crawford, Dane, Green, Lafayette, Rock, Richland and Sauk counties is changed from "prohibited" to the reduced regulatory status of "restricted" due to its recently discovered relative abundance in those counties. The revisions also correct the order of the county names to be alphabetical.
SECTION 4. corrects the scientific name of snakehead fish, corrects inconsistencies in the use of Italic font for species scientific names, corrects the revised list of prohibited fish species to be in alphabetical order, specifically lists or names the snakehead fish species that are considered viable in Wisconsin waters, and adds an informational Note that identifies nonnative fish species that the department has determined are not viable.
SECTIONS 5., 6., 7., 9., 10., 11., 12., 13. and 15. create or amend informational Notes to various provisions of ch.
NR 40
. The Notes are created or revised to reflect changes made by
2009 Wisconsin Act 55
or changes made elsewhere in this proposed rule, or to correct staff position titles, email addresses or Internet links or other similar information.
SECTION 14. revises the current bans in ch.
NR 40
on the highway transport or launching of any vehicle, boat, boat trailer or other equipment that has an aquatic plant or aquatic animal attached. The revisions remove code language made largely redundant by the adoption of s.
30.07
, Stats., as created by
2009 Wisconsin Act 55
, effective November 12, 2009. Section
30.07
, Stats., includes a ban on the placement or operation in navigable waters of any vehicle, watercraft or equipment with aquatic plants or aquatic animals attached to the exterior. As a compliment to s.
30.07
, Stats., the proposed rule retains and revises language in ch.
NR 40
banning the placement or operation in wetlands or non-navigable waters of any vehicle, watercraft or equipment with aquatic plants or aquatic animals attached to the exterior. The proposed rule exempts native duckweed and wild rice like s.
30.07
, Stats., but unlike the statute, the proposed rule retains an exemption for vehicles, watercraft and equipment engaged in fire suppression.
SECTION 16. of the proposed rule removes an unnecessary regulatory permit requirement that duplicated an existing statutory requirement relating to the introduction of nonnative aquatic plants. References to nonnative aquatic plants are removed from s.
NR 40.07 (7)
and the remaining rule is revised, for consistency, to require a ch.
NR 40
permit instead of a "written exemption" to introduce nonnative
algae and cyanobacteria
to waters of the state. A Note is added referring to the existing statutory permit requirement under s.
23.24
, Stats., for introduction of nonnative aquatic
plants
.
Comparison with federal regulations
There are no directly comparable federal regulations.
Comparison with rules in adjacent states
Because the proposed rule consists only of unique "housekeeping" revisions to existing administrative rules, no comparison is possible.
Factual data and analytical methodologies
Department staff and members of the public identified drafting errors and potential problems in ch.
NR 40
after it was adopted effective September 1, 2009. In addition, a review of ch.
NR 40
was conducted after the enactment of
2009 Wisconsin Act 55
(effective November 12, 2009) to identify how ch.
NR 40
should be revised to conform to the Act.
Analysis and supporting documents used to determine the effect on small businesses
The proposed rule is intended to correct drafting errors, clarify existing code language, harmonize the existing code with new statutory provisions by eliminating redundancies, and accomplish other, similar "housekeeping" changes. It does not establish any new requirements.
Small Business Impact
The proposed rule is not expected to have a significant adverse effect on a substantial number of small businesses and may have favorable effects on a number of businesses by correcting and clarifying existing rules and by adding informational Notes to ch.
NR 40
.
Interested parties may include the plant nursery industry, seed and agriculture industries, fish farmers, bait dealers, aquarium and ornamental fish dealers, land owners and managers, commercial fishers, anglers, gardeners, county and municipal governments, lake districts, government agencies, environmental and conservation organizations, and the Wisconsin Invasive Species Council.
Enforcement of ch.
NR 40
will not change as a result of the proposed rule. Enforcement will vary depending on the species being regulated and the applicability of other rules and statutes. For forest or plant pests and aquaculture, the department and DATCP share regulatory responsibility. The department has (or will develop) memoranda of agreement with DATCP to clarify what aspects of ch.
NR 40
and related rules will be enforced by each agency.
The department will normally follow an informal, stepped enforcement process in order to obtain compliance with the revised invasive species rules. This involves informal discussions between department staff and the landowner or company, notifying the person of potential violations and providing guidance on how to comply with the rules. Notices of non-compliance may follow if necessary. If formal enforcement is necessary, these revised rules and permits issued under the revised rules will be enforced by department conservation wardens, county district attorneys, and circuit courts through the use of citations and civil or criminal complaints. Civil and criminal enforcement may also be carried out by department referral of violations to the Wisconsin Attorney General, with prosecution and abatement actions in the circuit courts. Criminal enforcement will be limited to intentional violations. Finally, violations of the permits issued under revised ch.
NR 40
also may be enforced by administrative permit revocation proceedings.
Initial regulatory flexibility analysis
Pursuant to s.
227.114
, Stats., the proposed rule may have an impact on small businesses but is not expected to have a significant adverse effect on a substantial number of small businesses and may have favorable effects on a number of businesses by correcting and clarifying existing rules and by adding informational Notes to ch.
NR 40
. The department's initial regulatory flexibility analysis is as follows:
Type of small business that will be affected by the rule.
Small businesses that may be affected by the proposed rule include the plant nursery industry, seed and agriculture industries, fish farmers, bait dealers, aquarium and ornamental fish dealers, businesses that own or manage land, and commercial fishers.
Reporting, bookkeeping and other procedures required for compliance with the rule.
No new reporting, bookkeeping or other procedures are created by the proposed rule.
Type of professional skills necessary for compliance with the rule.
No new professional skills are needed to comply with the proposed rule.
Small business regulatory coordinator
The department's Small Business Regulatory Coordinator may be contacted by calling (608) 266-1959 or by email at
Linda.Haddix@wisconsin.gov
.
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
State fiscal effect
None anticipated.
Local government fiscal effect
None.
Agency Contact Person
Kelly Kearns
Bureau of Endangered Resources
Department of Natural Resources
PO Box 7921
Madison, WI 53707-7921
Telephone: (608) 267-5066
Notice of Hearings
Natural Resources
Fish, Game, etc., Chs. NR 1—
NOTICE IS HEREBY 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
,
12
and
19
, Wis. Adm. Code, relating to hunting, trapping, closed areas and game refuges (
CR 10-020
).
The proposed rules will:
1.
Establish a definition and allow the use of atlatls for small game hunting.
2.
Allow the use of colony traps for muskrats and establish size standards and regulations.
3.
Eliminate the Burnett County and Rock Prairie Canada Goose Management Subzones.
4.
Establish and clarify definitions of a normal "agricultural or gardening practice" and "manipulation" for the purposes of enforcing existing prohibitions of baiting and feeding wild animals.
5.
Allow participation in the youth turkey hunting season by 16 and 17 year olds.
6.
Establish turkey hunting seasons and zones at Hartman Creek, Straight Lake, and the Glacial Heritage Area State Parks.
7.
Establish a single, consistent raccoon season opener for residents and non-residents.
8.
Allow firearm deer hunting at Nelson Dewey state park during the traditional season in November.
9.
Allow deer hunting on newly acquired lands at Buckhorn state park during all normal firearm deer hunting seasons.
10.
Allow muzzleloader deer hunting at Big Bay state park during the normal statewide muzzleloader season that follows the traditional November firearm season.
11.
Establish firearm and archery deer hunting seasons at proposed Glacial Heritage Area state parks that are consistent with other CWD Management Zone state park hunting seasons.
12.
Allow participation in the youth deer hunting season by 16 and 17 year olds.
13.
Establish a single, consistent statewide opening date for fox hunting and trapping and coyote trapping.
14.
Eliminate the 2:00 p.m. pheasant hunting closure at Scuppernong River Habitat Management Area in Waukesha County and allows pheasant hunting all day.
15.
Allow the use of scopes on muzzleloading firearms during the muzzleloader-only deer hunting season.
16.
Provide that all deer hunting licenses which are issued to 10 year-olds to 17 year-olds will include a carcass tag that is valid for an antlerless deer in any unit statewide.
17.
Allow the transportation of whole deer carcasses from the CWD zone to other areas if the whole carcass is taken directly to a licensed meat processor or taxidermist.
18.
Allow dividing a deer into five parts prior to registration in order to facilitate removal from the field. These sections also repeal, recreate and amend provisions which allow quartering bear and elk so that they may be divided into five parts in order to more easily facilitate removal from the field.
19.
Increase the penalty for violation animal damage abatement program requirements by clarifying that program participation can be denied for the following program year in addition to the current year.
20.
Clarify the definition of "novice participant" for learn to hunt programs.
NOTICE IS HEREBY FURTHER GIVEN that pursuant to ss.
29.014 (1)
,
29.039
,
29.041
,
29.053
,
29.531
and
29.533
, Stats., the Department of Natural Resources will hold public hearings on revisions to Chapters
NR 20
,
21
and
26
, Wis. Adm. Code, relating to fishing on the inland, outlying, and boundary waters of Wisconsin (
CR 10-025
).
The proposed rules will:
1.
Permit motor trolling in Ashland, Iron, Price and Sawyer counties.
2.
Eliminate the minimum size restriction for largemouth and smallmouth bass in Bear, Horsehead, and Upper and Lower Turtle lakes (Barron county).
3.
Increase the minimum size restriction for walleye in Bear, Horseshoe (T36N, R14E, S3, 115 ac.), and Upper and Lower Turtle lakes (Barron county) from 15 to 18 inches and decreases the daily bag limit for walleye from 5 fish to 3 fish.
4.
Eliminate the minimum size restriction for largemouth and smallmouth bass in Lake Owen (Bayfield county).
5.
Increase the minimum size restriction for walleye in Lake Owen (Bayfield County) from 15 to 18 inches and decreases the daily bag limit for walleye from 5 fish to 3 fish.
6.
Eliminate the minimum size restriction for largemouth and smallmouth bass in Big McKenzie lake (Burnett/ Washburn counties).
7.
Increase the minimum size restriction for walleye in Big McKenzie lake (Burnett/ Washburn counties) from 15 to 18 inches and decreases the daily bag limit for walleye from 5 fish to 3 fish.
8.
Increase the minimum size restriction for walleye in Metonga lake (Forest county) from 15 to 18 inches and decreases the daily bag limit for walleye from 5 fish to 3 fish.
9.
Standardize trout regulations for all of the Wolf river (Langlade county), allowing hook and line fishing only with artificial lures from the First Saturday in May at 5:00am until September 30 with a bag limit of 3 and a maximum size of 12 inches. There is also a catch and release season from October 1 to November 15 for hook and line fishing with artificial lures.
10.
Eliminate the minimum size restriction for largemouth and smallmouth bass in Half Moon, Pipe, and Ward lakes (Polk county).
11.
Increase the minimum size restriction for walleye in Big Butternut, Half Moon, Pipe, and Ward lakes (Polk county) from 15 to 18 inches and reduces the daily bag limit for walleye from 5 fish to 3 fish.
12.
Eliminate the minimum size restriction for largemouth and smallmouth bass in Chain, Clear, Island, and McCann lakes (Island chain of lakes, Rusk county).
13.
Increase the minimum size restriction for walleye in Chain, Clear, Island, and McCann lakes (Island chain of lakes, Rusk county) from 15 to 18 inches and reduces the daily bag limit for walleye from 5 fish to 3 fish.
14.
Extend the season on Chippewa flowage (Sawyer county) from the first Saturday in May to the first Sunday in March for all species except muskellunge, walleye, and lake sturgeon.
15.
Eliminate the minimum size restriction for largemouth and smallmouth bass in Whitefish and Sissabagama lakes, and the Chippewa flowage (Sawyer county).
16.
Increase the minimum size restriction in Nelson, Sissabagama and Whitefish lakes from 15 to 18 inches and reduces the daily bag limit for walleye from 5 fish to 3 fish.
17.
Change the panfish daily bag limit to 10 fish daily bag limit for all panfish all season on the Chippewa flowage, and creates a continuous open season for panfish. The previous panfish bag limits were 25 with no more than 15 crappie from the first Saturday in May until November 30 but no crappie from December 1 to the first Sunday in March, with fishing for panfish prohibited between the first Sunday in March and the first Saturday in May.
18.
Increase the minimum size restriction for walleye in the Chippewa flowage from no minimum to 18 inches. The daily bag limit is unchanged at 3 walleye per day.
19.
Make permanent the 45 inch minimum size restriction for muskellunge in Little St. Germain lake (Vilas county). The current 45-inch minimum regulation is scheduled to expire November 30, 2011.
20.
Eliminate the minimum size restriction for largemouth and smallmouth bass in Middle McKenzie, Nancy and Long lakes (Washburn county).
21.
Increase the minimum size restriction for walleye in Middle McKenzie (Washburn/ Burnett counties), Nancy and Long lakes (Washburn county) from 15 to 18 inches and reduces the daily bag limit for walleye from 5 fish to 3 fish.
22.
Increase the minimum size restriction for northern pike on Big Muskego lake including Bass bay (Waukesha county) from 26 inches to 40 inches and reduces the daily bag limit from 2 to 1 fish.
23.
Increase the minimum size restriction for bass in Marion Pond (Waupaca county) from 14 inches to 18 inches and reduces the daily angler bag limit from 5 to 1. This rule will expire on April 1, 2016.
24.
Increase the minimum size restriction for northern pike in Marion pond (Waupaca county) from no minimum to 26 inches and reduces the daily angler bag limit from 5 to 2. This rule will expire April 1, 2016.
25.
Decrease the minimum length restriction to 7 inches for all trout in the Waupaca river downstream of River road. Current regulations are 12 inches for brown trout and rainbow trout, and 8 inches for brook trout. It also increases the daily angler bag from 3 trout to 5 trout.
26.
Prohibit night fishing from September 15 to the first Saturday in May in the section of the Oconto river from the upstream side of the US 141 Bridge to the Stiles dam (Oconto county).
27.
Add a catch-and-release season for Lake Sturgeon on the St. Croix river from October 1 to 15. This section of the St. Croix river is a Wisconsin-Minnesota boundary water, and this section will make Wisconsin rules consistent with Minnesota rules.
28.
Extend 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.
29.
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).
30.
Replace the current no minimum length limit and 14 to 18 inch protected slot with no minimum length limit but only 1 fish over 14" and increase the daily bag limit from 3 to 5 for walleye on the Three Lakes chain, Oneida County.
31.
Replace the no minimum length limit but only 1 fish over 14" with a 15" minimum length limit for walleye on Sevenmile lake, Oneida County.
NOTICE IS HEREBY FURTHER GIVEN that at 7:00 p.m. on
Monday, April 12, 2010
, 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 and Conservation Congress advisory questions.
Hearing Information
The hearings will be held on
Monday, April 12, 2010
at 7:00 p.m. at the following locations:
Adams
Adams County Courthouse
County Board Room, 402 Main Street
Friendship
Ashland
Ashland Senior High School
1900 Beaser, Ashland
Barron
Old County Courthouse, Auditorium
330 E. LaSalle Avenue, Barron
Bayfield
Bayfield County Courthouse
County Board Room
117 E. 5th Street, Washburn
Brown
Southwest High School, School Auditorium
1331 Packerland Drive, Green Bay
Buffalo
Alma High School, Gymnasium
S1618 STH 35, Alma
Burnett
Burnett County Government Center
7410 County Road K, Siren
Calumet
Calumet County Courthouse, Rm. B025
206 Court Street, Chilton
Chippewa
Chippewa Falls Middle School Auditorium
750 Tropicana Blvd., Chippewa Falls
Clark
Greenwood High School, Cafetorium
306 W. Central Avenue, Greenwood
Columbia
Portage Junior High School
2505 New Pinery Road, Portage
Crawford
Crawford County Courthouse
2nd Floor Courtroom
220 N. Beaumont Road, Prairie du Chien
Dane
E.F. Schwan Performing Arts Center
Monona Grove High School
4400 Monona Drive, Monona
Dodge
Horicon City Hall, 404 E. Lake Street
Horicon
Door
Sturgeon Bay High School, Auditorium
1230 Michigan Street, Sturgeon Bay
Douglas
Superior Senior High School, Cafeteria
2600 Catlin Avenue, Superior
Dunn
Dunn County Fish and Game Club
1900 Pioneer Avenue, Menomonie
Eau Claire
South Middle School, Auditorium
2115 Mitscher Avenue, Eau Claire
Florence
Florence Natural Resource Center
5631 Forestry Drive, Florence
Fond du Lac
Theisen Middle School
525 E Pioneer Road, Fond du Lac
Forest
Crandon Area School District
9750 US HWY 8 West, Crandon
Grant
Lancaster High School, Hillary Auditorium,
806 East Elm Street, Lancaster
Green
Monroe Middle School
1220 16th Avenue, Monroe
Green Lake
Green Lake High School, Small Gym
612 Mill Street, Green Lake
Iowa
Dodgeville High School, Gymnasium
912 Chapel Street, Dodgeville
Iron
Mercer Community Center
2648 W Margaret Street, Mercer
Jackson
Black River Falls Middle School, LGI Rm.
1202 Pierce Street, Black River Falls
Jefferson
Jefferson County Fair Park Activity Center
503 N. Jackson, Jefferson
Juneau
Olson Middle School, Auditorium
508 Grayside Avenue, Mauston
Kenosha
Bristol Elementary School
20121 83rd Street, Bristol
Kewaunee
Kewaunee High School, Auditorium
911 Third Street, Kewaunee
La Crosse
Onalaska High School
700 Hilltopper Pl., Onalaska
Lafayette
Darlington High School, Auditorium
11838 Center Hill Road, Darlington
Langlade
Antigo High School
1900 10th Avenue, Antigo
Lincoln
Tomahawk Elementary School
1048 East King Road, Tomahawk
Manitowoc
UW-Manitowoc, Theatre/Auditorium
705 Viebahn Street, Manitowoc
Marathon
D.C. Everest Middle School, Auditorium
9302 Schofield Avenue, Schofield
Marinette
Crivitz High School, Auditorium
400 South Avenue, Crivitz
Marquette
Montello High School, Community Room
222 Forest Lane, Montello
Menominee
Menominee County Courthouse
Courthouse Lane, Keshena
Milwaukee
Nathan Hale High School
11601 W. Lincoln Avenue, West Allis
Monroe
Sparta Meadowview School
A103 Cafetorium
1225 North Water Street, Sparta
Oconto
Suring High School, Cafeteria
411 E Algoma Street, Suring
Oneida
James Williams Middle School, Auditorium
915 Acacia Lane, Rhinelander
Outagamie
Riverview Middle School, Auditorium
101 Oak Street, Kaukauna
Ozaukee
Webster Middle School, Commons
W75 N624 Wauwatosa Road, Cedarburg
Pepin
Pepin County Government Center
County Board Room
740 7th Avenue West, Durand
Pierce
Ellsworth Senior High School, Auditorium
323 Hillcrest, Ellsworth
Polk
Unity High School
1908 150th Street, Balsam Lake
Portage
Ben Franklin Junior High School
Auditorium - Room 1208
2000 Polk Street, Stevens Point
Price
Price County Courthouse
126 Cherry Street, Phillips
Racine
Union Grove High School
3433 S. Colony Avenue, Union Grove
Richland
Richland County Courthouse, Courtroom
181 West Seminary, Richland Center
Rock
Pontiac Convention Center
2809 N. Pontiac Drive, Janesville
Rusk
Ladysmith High School
1700 Edgewood, Ladysmith
Saint Croix
St Croix Central High School, Commons
1751 Broadway Street, Hammond
Sauk
UW Baraboo Campus, A4 Lecture Hall
1006 Connie Road, Baraboo
Sawyer
Winter High School Cafeteria
6585W Grove Street, Winter
Shawano
Shawano Middle School, LGI Room
1050 S. Union Street, Shawano
Sheboygan
Sheboygan Falls High School, Auditorium
220 Amherst Avenue, Sheboygan Falls
Taylor
Fair Grounds, Multi Purpose Building
Hwy 64/ Hwy 13, Medford
Trempealeau
City Center Gym
36245 Park Street, Whitehall
Vernon
Viroqua High School, Commons
100 Blackhawk Drive, Viroqua
Vilas
Saint Germain Elementary School
8234 Hwy 70, Saint Germain
Walworth
Delavan-Darien High School
150 Cummings Street, Delavan
Washburn
Spooner Ag Research Station
W6646 Highway 70, Spooner
Washington
Washington County Fairgrounds
3000 Cty Hwy PV, West Bend
Waukesha
Waukesha Expo Center, North Hall
1000 Northview Road, Waukesha
Waupaca
Waupaca High School, Auditorium
E 2325 King Road, Waupaca
Waushara
Waushara County Court House
2nd Floor Old Court Room
209 S. St. Marie Street, Wautoma
Winnebago
Webster Stanley Middle School
Auditorium, 915 Hazel Street, Oshkosh
Wood
Pittsville High School, Auditorium
5459 Elementary Avenue, 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 5, 2010.
Copies of Proposed Rules and Submittal 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 13, 2010.
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.
CR 10-020
— Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Explanation of agency authority
The statutes listed above specifically provide the department with authority to establish game refuges, maintain open and closed seasons and other regulations to conserve fish and game and ensure opportunities for hunting and trapping, provide additional hunting opportunities for persons who are physically disabled, report the number and kind of animal taken by hunters and trappers and authorize and regulate hunting on land in state parks. All rules promulgated under this authority are subject to review under ch.
227
, Stats.
Related rule or statute
There are no state rules or statutes that directly relate to the provisions that are proposed in this administrative order.
Plain language analysis
The department has recommended modifications to chapters NR 10, 11, 12 and 19, Wis. Adm. Code, relating to hunting, trapping, closed areas and game refuges. These rule changes are proposed for inclusion in the 2010 Spring Hearing Questionnaire. Specifically, these proposals do the following:
Sections 1 and 23 establish a definition and allow the use of atlatls for small game hunting.
Sections 2, 29 and 30 allow the use of colony traps for muskrats and establish size standards and regulations.
Sections 3, 5, 6, 7, 8, 32 and 33 eliminate the Burnett County and Rock Prairie Canada Goose Management Subzones.
Sections 4, 21, 36 and 39 establish and clarify definitions of a normal "agricultural or gardening practice" and "manipulation" for the purposes of enforcing existing prohibitions of baiting and feeding wild animals.
Section 9 allows participation in the youth turkey hunting season by 16 and 17 year olds.
Sections 10 and 31 establish turkey hunting seasons and zones at Hartman Creek, Straight Lake, and the Glacial Heritage Area State Parks.
Sections 11 and 12 establish a single, consistent raccoon season opener for residents and non-residents.
Section 13 allows firearm deer hunting at Nelson Dewey state park during the traditional season in November.
Section 14 allows deer hunting on newly acquired lands at Buckhorn state park during all normal firearm deer hunting seasons.
Section 15 allows muzzleloader deer hunting at Big Bay state park during the normal statewide muzzleloader season that follows the traditional November firearm season.
Section 16 Establishes firearm and archery deer hunting seasons at proposed Glacial Heritage Area state parks that are consistent with other CWD Management Zone state park hunting seasons.
Section 17 allows participation in the youth deer hunting season by 16 and 17 year olds.
Section 18 and 19 establish a single, consistent statewide opening date for fox hunting and trapping and coyote trapping.
Section 21 eliminates the 2:00 p.m. pheasant hunting closure at Scuppernong River Habitat Management Area in Waukesha County and allows pheasant hunting all day.
Section 22 allows the use of scopes on muzzleloading firearms during the muzzleloader-only deer hunting season.
Section 24 provides that all deer hunting licenses which are issued to 10 year-olds to 17 year-olds will include a carcass tag that is valid for an antlerless deer in any unit statewide.
Sections 25 and 26 allow the transportation of whole deer carcasses from the CWD zone to other areas if the whole carcass is taken directly to a licensed meat processor or taxidermist.
Section 27 and 28 allow dividing a deer into five parts prior to registration in order to facilitate removal from the field. These sections also repeal, recreate and amend provisions which allow quartering bear and elk so that they may be divided into five parts in order to more easily facilitate removal from the field.
Sections 34 and 35 increases the penalty for violation animal damage abatement program requirements by clarifying that program participation can be denied for the following program year in addition to the current year.
Sections 37 and 38 clarify the definition of "novice participant" for learn to hunt programs.
Comparison with federal regulations
Federal regulations allow states to manage the wildlife resources located within their boundaries provided they do not conflict with regulations established in the Federal Register. None of these rule changes violate or conflict with the provisions established in the Federal Code of Regulations.
Comparison with rules in adjacent states
These rule change proposals do not represent significant policy changes and do not differ significantly from surrounding states. All surrounding states have regulations and rules in place for the management and recreational use of wild game and furbearer species that are established based on needs that are unique to that state's resources and public desires.
Iowa allows the use of atlatls for small game hunting and at least 12 other states allow their use, primarily for small or non-game species. In some of these state, non-game includes rabbits, squirrels, raccoon, fox, coyote and other species that would be considered small game or furbearers in Wisconsin.
All of Wisconsin's surrounding states allow deer or turkey hunting in certain situations on properties which are comparable to state parks in Wisconsin and have a wide variety of season types and firearm or archery options.
The federal maximum age for participation in special youth waterfowl hunting seasons is 15. Minnesota allows participation by 12 to 17 year olds in its youth turkey hunts. Most of Iowa's hunts are for 12 – 15 year olds. Michigan youth hunts are for 10 to 16 year olds. The minimum age for Illinois youth hunts is generally 10 but the maximum is either 15 or 16, varies from pheasant to deer.
Minnesota, Iowa and Illinois all have consistent raccoon season opening dates for residents and non-residents. Michigan does not allow non-resident raccoon trapping until a month after the resident season has opened, however, Michigan does not allow trapping or fur harvest by Wisconsin residents.
Minnesota does not allow scopes on muzzleloaders. Illinois, Michigan and Iowa do allow the use of scopes.
All of Wisconsin's surrounding states have a consistent statewide opening day for fox. The coyote season also opens on the same day statewide in Wisconsin's surrounding states. While those states do not have zones for the same species, the fox and coyote seasons are different in all surrounding states except Iowa.
Minnesota allows quartering deer in the field and requires that the head of the deer remain attached to one of the quarters. Iowa requires deer to remain intact until the animal is processed for consumption. Wisconsin's other surrounding states do not prohibit quartering deer in the field to facilitate removal.
Colony traps are legal in Minnesota but not allowed in Illinois. In Iowa and Michigan colony traps are legal only for muskrats and must be entirely submerged.
Summary of factual data and analytical methodologies
The rule changes included in this order do not deviate from current department policy on the management of wildlife and the regulation of hunting and trapping.
This rule proposal would allow small game hunting with an implement called an atlatl. An atlatl is a primitive device that achieves the velocity needed to strike a target with a dart by the use of a lever. The efficiency of this device may be comparable to traditional archery gear. Currently small game animals may be hunted with firearms, air guns, archery gear, and crossbows (if authorized by permit). In this proposal, small game includes species which are unprotected under current rule.
This rule would allow the use of traps which are capable of capturing multiple muskrats in one setting, commonly called colony traps. Maximum trap dimensions and placement restrictions are established and the use of bait is prohibited in order to limit the number of animals captured in one setting of a trap to three or four and minimize the chance of catching non-target species. This rule specifies that colony traps may only be used for muskrat but mink that are incidentally captured could be retained and utilized by the trapper. Because this trap type completely encloses the trapped animal in a cage, fur damage by predators is minimized. Colony traps do not have moving parts other than a one-way gravity drop entrance and will not create conflict with other wetland dependant activities such as duck hunting.
Elimination of the Burnett County and Rock Prairie Canada Goose Management Subzones is proposed because they are no longer needed with the recovery of year-round populations of resident geese.
Under current regulations on the practice of baiting and feeding wild animals, normal agricultural or gardening practices and crop manipulation are not considered baiting. These practices are not defined in administrative code. For the purposes of enforcing current prohibitions of baiting and feeding wild animals this proposal more specifically defines a normal agricultural or gardening practice by clarifying that, once a crop is harvested, it is considered to be bait if it is placed back on the landscape. If a crop is placed in an area, such as fenced pasture for the purpose of feeding livestock, it is not considered to be bait.
Currently, participation in the youth turkey and deer hunting seasons is allowed only by youth ages 10 to 15. This proposal would expand participation in those seasons by allowing 16 and 17 year olds. In 2008, the number of 16 and 17 year olds who purchased licenses to hunt during the regular firearm deer seasons was 18,749.
Hunting at state park properties is prohibited by state statute unless the department has promulgated rules that specifically allow hunting for deer, turkeys, or small game at an individual park property. Turkey hunting is currently allowed during the first three of the six spring turkey hunting periods at 14 state parks. These properties are managed primarily for outdoor recreational activities other than hunting but, by allowing hunting prior to times when property use increases, hunting can be accommodated while minimizing user conflict. This rule would expand turkey hunting opportunities at three properties, Straight Lake, Hartman Creek and the newly proposed Glacial Heritage Area state park. Fall turkey hunting is not allowed at any state parks and is not proposed for these three.
This rule would establish a single, consistent raccoon season opener for residents and non-residents. The current season restricts non-residents from the first two weeks of the fall season. There is, however, no measurable level of competition for this resource between residents and non-residents. Since 2006 the department sold 6, 6, and 5 non-resident trapping licenses, respectively. Non-resident furbearer hunting licenses average 35-40 annually with many purchased specifically for bobcat hunting. This would be consistent with all other current Wisconsin non-resident furbearer hunting and trapping seasons, which open with the resident season opener. This proposal is a simplification of current rule and there is no biological reason for the existing delay for non-residents.
Hunting at state park properties is prohibited by state statute unless the department has promulgated rules that specifically allow hunting for deer, turkeys, or small game at an individual park property. Current rule authorizes rifle, shotgun or muzzleloader deer hunting opportunities at 25 state parks. This proposal would expand deer hunting opportunities at Nelson Dewey state park by allowing hunting during the traditional firearm season in November. It would allow deer hunting on newly acquired lands at Buckhorn state park during all normal firearm deer hunting seasons. The proposal allows muzzleloader deer hunting at Big Bay state park during the normal statewide muzzleloader season that follows the traditional November firearm season. Finally, this rule would establish firearm and archery deer hunting seasons at proposed Glacial Heritage Area state parks which are consistent with other CWD Management Zone state park hunting seasons. Deer hunting at state parks provides hunting opportunities in ways that are designed to minimize conflicts with non-hunting state park users and to control deer herd impacts on natural vegetation.
Under this proposal, the north and south zones for fox hunting and trapping seasons would be eliminated so that the seasons for fox hunting and trapping would open concurrently statewide. The coyote trapping season, which is the same as the fox season, is revised in the same way under this proposal. This will provides hunters in the old south zone with an additional two weeks of harvest opportunity. There appears no biological reason to delay southern seasons by 8 days. This proposal simplifies an unneeded complication. A person in southern Wisconsin, if concerned that pelts will not be prime under the early season framework, can simply chose to delay harvest.
This proposal would eliminate the 2:00 p.m. pheasant hunting closure at Scuppernong River Habitat Management Area in Waukesha County and allow pheasant hunting all day. Scuppernong was once a Wildlife Area and was incorporated into the Kettle Moraine State Forest Southern Unit in 2001 and renamed the Scuppernong River Habitat Area. The early closure was designated to reduce pressure immediately following stocking, giving the birds time to disperse. This area does receive heavy hunting pressure but also has some of the best and most pheasant habitat in the County. The area is usually stocked with pheasants from the state game farm in the late afternoon and hunters only have a few hours to pursue birds. Adequate carry over of birds to the next day is expected with this rule change. The remainder of the forest is open after 2:00 p.m. for pheasant hunting and removing the early closure will make for consistent regulations in the area and avoid hunter confusion during the pheasant season.
This proposal would allow the use of scopes with magnifying power on muzzleloaders during the muzzleloader-only season that follows the traditional firearm season. Scopes are not currently allowed during the muzzleloader only season because, when the season was initially developed, public support was for a hunt that focused on the use of traditional, primitive firearms. Public opinion has evolved and appears now to favor allowing the use of scopes. Department staff people do not anticipate that this proposal will have any effect on deer herd management.
Currently, the Junior Gun Deer License includes one Gun Buck Deer Carcass Tag valid in any unit statewide and one Antlerless Deer Carcass Tag valid in Earn-A-Buck and Herd Control Units. In an effort to provide youth hunters with added opportunities to harvest a deer, this proposal would make the antlerless tag valid in any unit statewide.
Currently, only boned out meat, quarters that do not contain any part of the spine or head, hides, antlers, and finished taxidermy mounts may be transported from a CWD area in Wisconsin or another state or province. Allowing the transportation of deer carcasses from a CWD management areas to other areas will provide hunters with greater flexibility while still preventing environmental contamination through discarded animal parts by requiring that carcasses that contain any part of the spinal column and heads be delivered only to a licensed meat processor (not an unlicensed individual who cuts up deer only) or to a registered taxidermist within 72 hours. Licensed meat processors are required to properly dispose of carcass waste materials under DATCP rules and provisions are established in this proposal to require that taxidermists properly dispose of the parts of the carcasses of highest risk for spreading CWD.
The practice of quartering deer prior to registration, in order to facilitate removal from the field, is currently prohibited for most hunters. This proposal would allow a hunter to divide a deer into as many as five parts only for the purpose of removing the animal from the field. Currently bear and elk may be quartered but this proposal will allow dividing them up to five times which will be consistent with deer and more practical to facilitate removal from the field. In order to make identification easier for registration station staff and to assure that parts of different animals are not confused, this proposal requires that the head remain attached to one part of deer and bear and that no more than one deer or bear which is not intact may be possessed or transported prior to registration.
This proposal would increase the penalty for Wildlife Damage Abatement and Claims Program enrollees being uncooperative or wrongfully denying public hunting access. Under the proposal, enrollees found in violation would not be eligible for WDACP assistance or claims for an additional calendar year instead of the remainder of the current year. In many situations, the department is unaware of hunter access complaints until after the deer hunting season meaning enrollees proven to be uncooperative or wrongfully denying hunter access are not eligible for WDACP assistance for only a month or two. Under this proposal, program violations may be deterred by the increasing this penalty.
Finally, this proposal would clarify the definition of "novice participant" for learn to hunt programs in order to focus participation on hunters who are not likely to be exposed to hunting experiences unless they participate in the program. A concern with the current program is that participation is currently allowed by any novice, including those who do have access to mentors and who will be exposed to hunting regardless of participation in a learn to hunt program. A more precise definition will allow limited resources to be focused on novice hunters who will benefit the most from a mentored hunting experience.
Analysis and supporting documents used to determine effect on small business
These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector or small businesses.
Small Business Impact
These rules are applicable to individual sportspersons and impose no compliance or reporting requirements for small business, nor are any design or operational standards contained in the rule.
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
Assumptions used in arriving at fiscal estimate
Signs will need to be created and posted at state park properties where new hunting opportunities are being created. Maps of the areas where hunting is allowed at these properties will also be created but would be available to the public electronically which will eliminate any significant printing costs. It is anticipated that preparation for the first hunting season at these parks will cost less than $7,500 for all properties combined. The cost of preparing for future seasons will involve only sign maintenance and the cost of copying maps in-house. These costs will be spread across several properties and can be absorbed in the department's budget.
The department already administers seasons and enforces regulations related to all of the other hunting and trapping opportunities that are modified by this rules package. No new expenses or revenue are anticipated as a result of these proposals.
State fiscal effect
Increase costs. May be possible to absorb within agency's budget.
Local government fiscal effect
None.
Fund sources affected
SEG.
Long-range fiscal implications
None.
Agency Contact Person
Scott Loomans
101 S. Webster Street — PO Box 7921
Madison, WI 53707-7921
Phone: (608) 267-2452
CR 10-025
— Analysis Prepared by Department of Natural Resources
Statutes interpreted
Sections
29.014 (1)
,
29.039
,
29.041
,
29.053
,
29.531
and
29.533
, Stats., which authorize fishing, have been interpreted as giving the department the authority to make changes to fishing and clamming regulations on inland and boundary waters of Wisconsin.
Statutory authority
Explanation of agency authority
Sections
29.014 (1)
,
29.039
,
29.041
, and
29.053
, Stats., grant rule making authority to the department to establish and maintain open and closed seasons for fish and any bag limits, size limits, rest days and conditions governing the taking of fish that will conserve the fish supply and ensure the citizens of this state continued opportunities for good fishing; grant that the department may establish limitations relating to taking, possession, transportation, processing, and sale or offer for sale, of nongame species; and provide that the department may regulate fishing on and in all interstate boundary waters, and outlying waters. Section
227.11(2)(a)
, Stats., expressly confers rulemaking authority on the department to promulgate rules interpreting any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute.
Related rule or statute
None.
Plain language analysis
Sections 1, 9, 15 and 18 permit motor trolling in Ashland, Iron, Price and Sawyer counties.
Section 2 eliminates the minimum size restriction for largemouth and smallmouth bass in Bear, Horsehead, and Upper and Lower Turtle lakes (Barron county).
Section 3 increases the minimum size restriction for walleye in Bear, Horseshoe (T36N, R14E, S3, 115 ac.), and Upper and Lower Turtle lakes (Barron county) from 15 to 18 inches and decreases the daily bag limit for walleye from 5 fish to 3 fish.
Section 4 eliminates the minimum size restriction for largemouth and smallmouth bass in Lake Owen (Bayfield county).
Section 5 increases the minimum size restriction for walleye in Lake Owen (Bayfield County) from 15 to 18 inches and decreases the daily bag limit for walleye from 5 fish to 3 fish.
Section 6 eliminates the minimum size restriction for largemouth and smallmouth bass in Big McKenzie lake (Burnett/ Washburn counties).
Section 7 increases the minimum size restriction for walleye in Big McKenzie lake (Burnett/ Washburn counties) from 15 to 18 inches and decreases the daily bag limit for walleye from 5 fish to 3 fish.
Section 8 increases the minimum size restriction for walleye in Metonga lake (Forest county) from 15 to 18 inches and decreases the daily bag limit for walleye from 5 fish to 3 fish.
Sections 10 and 11 standardize trout regulations for all of the Wolf river (Langlade county), allowing hook and line fishing only with artificial lures from the First Saturday in May at 5:00am until September 30
with a bag limit of 3 and a maximum size of 12 inches. There is also a catch and release season from October 1 to November 15 for hook and line fishing with artificial lures.
Section 12 replaces the current no minimum length limit and 14 to 18 inch protected slot with no minimum length limit but only on fish over 14 inches in length and increases the daily bag limit from 3 to 5 for walleye in the Three Lakes chain and replaces the no minimum length limit but only on fish over 14 inches in length with a 15" minimum length limit on Sevenmile lake, Oneida county.
Section 13 eliminates the minimum size restriction for largemouth and smallmouth bass in Half Moon, Pipe, and Ward lakes (Polk county).
Section 14 increases the minimum size restriction for walleye in Big Butternut, Half Moon, Pipe, and Ward lakes (Polk county) from 15 to 18 inches and reduces the daily bag limit for walleye from 5 fish to 3 fish.
Section 16 eliminates the minimum size restriction for largemouth and smallmouth bass in Chain, Clear, Island, and McCann lakes (Island chain of lakes, Rusk county).
Section 17 increases the minimum size restriction for walleye in Chain, Clear, Island, and McCann lakes (Island chain of lakes, Rusk county) from 15 to 18 inches and reduces the daily bag limit for walleye from 5 fish to 3 fish.
Sections 19 and 21 extends the season on Chippewa flowage (Sawyer county) from the first Saturday in May to the first Sunday in March for all species except muskellunge, walleye, and lake sturgeon.
Section 20 eliminates the minimum size restriction for largemouth and smallmouth bass in Whitefish and Sissabagama lakes, and the Chippewa flowage (Sawyer county).
Section 20 also increases the minimum size restriction in Nelson, Sissabagama and Whitefish lakes from 15 to 18 inches and reduces the daily bag limit for walleye from 5 fish to 3 fish.
Section 20 also changes the panfish daily bag limit to 10 fish daily bag limit for all panfish all season on the Chippewa flowage, and creates a continuous open season for panfish. The previous panfish bag limits were 25 with no more than 15 crappie from the first Saturday in May until November 30 but no crappie from December 1 to the first Sunday in March, with fishing for panfish prohibited between the first Sunday in March and the first Saturday in May.
Section 21 also increases the minimum size restriction for walleye in the Chippewa flowage from no minimum to 18 inches. The daily bag limit is unchanged at 3 walleye per day.
Section 22 makes permanent the 45 inch minimum size restriction for muskellunge in Little St. Germain lake (Vilas county). The current 45-inch minimum regulation is scheduled to expire November 30, 2011.
Section 23 eliminates the minimum size restriction for largemouth and smallmouth bass in Middle McKenzie, Nancy and Long lakes (Washburn county).
Section 24 increases the minimum size restriction for walleye in Middle McKenzie (Washburn/ Burnett counties), Nancy and Long lakes (Washburn county) from 15 to 18 inches and reduces the daily bag limit for walleye from 5 fish to 3 fish.
Section 25 increases the minimum size restriction for northern pike on Big Muskego lake including Bass bay (Waukesha county) from 26 inches to 40 inches and reduces the daily bag limit from 2 to 1 fish.
Section 26 increases the minimum size restriction for bass in Marion Pond (Waupaca county) from 14 inches to 18 inches and reduces the daily angler bag limit from 5 to 1. This rule will expire on April 1, 2016.
Section 27 increases the minimum size restriction for northern pike in Marion pond (Waupaca county) from no minimum to 26 inches and reduces the daily angler bag limit from 5 to 2. This rule will expire April 1, 2016.
Section 28 decreases the minimum length restriction to 7 inches for all trout in the Waupaca river downstream of River road. Current regulations are 12 inches for brown trout and rainbow trout, and 8 inches for brook trout. It also increases the daily angler bag from 3 trout to 5 trout.
Section 29 prohibits night fishing from September 15 to the first Saturday in May in the section of the Oconto river from the upstream side of the US 141 Bridge to the Stiles dam (Oconto county).
Section 30 adds a catch-and-release season for Lake Sturgeon on the St. Croix river from October 1 to 15. This section of the St. Croix river is a Wisconsin-Minnesota boundary water, and this section will make Wisconsin rules consistent with Minnesota rules.
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
