CR_10-024 Hearing to consider rules to create Ch. Comm 6, relating to no smoking.

Unless prohibited by law, the director of the department may waive, or may conditionally waive, any requirement in the foster care licensing rules if doing so is in the best interest of the foster care children.

Iowa:

Relatives who are caring for a child may be eligible to receive financial assistance through foster care or a child-only or family grant under the state's Temporary Assistance to Needy Families program. To receive foster care payments, a relative must be licensed as a foster parent.

On a case-by-case basis, the service area manager or area social work administrator may waive any licensing standard unless the requirement is set in state or federal law or the waiver could have a negative impact on the safety and well-being of a child placed in the foster family home.

Analysis used to determine effect on small businesses

The proposed rule will affect private child-placing agencies, but the effect will be minimal.

Small Business Impact

The proposed rule will affect small businesses as defined in s. 227.114 (1) , Stats., but will not have a significant economic impact on a substantial number of businesses.

The Department's Small Business Regulatory Coordinator is Elaine Pridgen, [phone], elaine.pridgen@ wisconsin.gov.

Fiscal Estimate

Assumptions used in arriving at fiscal estimate

The rule implements the first two levels of the Graduated Licensing and Levels of Care policy, as directed in 2009 Wisconsin Act 28 . This rule establishes the requirements for certification at these two levels of care. A foster home at these two levels is certified based on a number of factors, including the level of knowledge, skill, training and experience of the licensee, the level of responsibilities expected, and the needs of the child. The rule also establishes training requirements for these levels of licensure.

These changes will affect counties and the Department, which operates the child welfare program in Milwaukee County. The fiscal impact of these changes was included in the biennial budget; therefore implementation of these rules is not anticipated to have a fiscal effect.

Additionally, by not implementing the rule, DCF stands to lose a substantial amount of federal revenue. By licensing current court-ordered Kinship Care providers, Act 28 assumes that the Department will be able to claim an additional $6,524,300 in IV-E revenue as a result of the policy. Without the rule, DCF will not be able to require these providers to get certified and will lose the additional revenue assumed in Act 28.

State fiscal effect

None.

Local government fiscal effect

None.

Long-range fiscal implications

None.

Agency Contact Person

Jonelle Brom

Bureau of Permanence and Out-of-Home Care

Division of Safety and Permanence

Phone: [phone]

Email: [e-mail] .

Notice of Hearing

Commerce

Ch. Comm 6

CR 10-024

NOTICE IS HEREBY GIVEN that pursuant to ss. 101.02 (1) and (15) (a) and (i) , and 101.123 (6) , Stats., the Department of Commerce will hold a public hearing on proposed rules to create Chapter Comm 6 , relating to no smoking.

Hearing Information

The public hearing will be held as follows:

Date and Time:	Location:
April 6, 2010	First Floor Conference Room
10:00 a.m.	Thompson Commerce Center
	201 W. Washington Avenue
	Madison

This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call [phone] or [phone] (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.

Appearances at Hearing and Submittal of Written Comments

Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until April 16, 2010, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. Written comments should be submitted to James Quast, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at [e-mail] .

Copies of Proposed Rules

The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at www.commerce.wi.gov/SB/ . Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at [e-mail] , or at telephone [phone] or TDD Relay dial 711 in Wisconsin or [phone]. Copies will also be available at the public hearing.

Analysis Prepared by Department of Commerce

Statutes interpreted

Sections 101.02 (1) , (15) (a) and (i) , 101.11 (1) , Stats.

Statutory authority

Sections 101.02 (1) , (15) (a) and (i) , and 101.123 (6) , Stats.

Related statute or rule

Section 101.123 , Stats.

Explanation of agency authority

Under the statutes cited, the Department of Commerce has the broad authority to protect the health of employees and frequenters of places of employment and public buildings.

Summary of proposed rules

The proposed rules prohibit smoking in enclosed indoor areas of places of employment and public buildings existing on or after July 1, 2010.

Comparison with federal regulations

An internet search on U.S. federal regulations and U.S. federal register yielded no results regarding a general prohibition of smoking in places of employment and public buildings.

Comparison with rules in adjacent states

The following is a comparison of smoking prohibitions enacted in adjacent states.

Illinois:

The Smoke Free Illinois Act, 410 ILCS 82, as of January 1, 2008 prohibits smoking in a public place or in any place of employment or within 15 feet of any entrance to a public place or place of employment.

Iowa:

Effective July 1, 2008, Iowa under the Smokefree Air Act no longer allows smoking in almost all public places and enclosed areas within places of employment, as well as some outdoor areas. The law applies to: restaurants, bars, outdoor entertainment events and amphitheaters. It also covers places of employment such as office buildings, health care facilities, and child care facilities. Smoking is allowed on the gaming floor of a licensed casino, as well as designated hotel and motel rooms.

Michigan:

Michigan has yet to enact a general statewide smoking prohibition.

Minnesota:

As of October 1, 2007 Minnesota under the Clean Indoor Air Act prohibits smoking in bars, restaurants, private clubs such as VFWs and American Legion halls, bowling alleys, country club lounges, lobbies of hotels and motels, public transportation, taxis, home offices where employees work or customers visit, home day cares when children are present, and smaller commercial vehicles carrying more than one person.

Summary of factual data and analytical methodologies

The proposed rules were developed as a result of an analysis of 2009 Wisconsin Act 12 . Under the Act, the statutory definitions for "enclosed place" in conjunction with "substantial wall" could be construed to permit smoking in many indoor spaces of public buildings and places of employment that would be inconsistent with the publicized objectives of the Act.

Analysis and supporting documents used to determine the effect on small businesses

The proposed rules implement a statewide smoking ban in enclosed areas of public buildings and places of employment similar to the publicized objectives of 2009 Wisconsin Act 12 . The rules would apply to all existing and future public buildings and places of employment. The department does not believe that the proposed rules will increase the effect on small businesses over the publicized objectives of the Act.

An economic impact report has not been required pursuant to s. 227.137 , Stats.

Small Business Impact

Initial regulatory flexibility analysis

Types of small businesses that will be affected by the rules.

The proposed no smoking rules will apply to enclosed indoor areas of places of employment and public buildings owned or leased by any business.

Reporting, bookkeeping and other procedures required for compliance with the rules.

No reporting, bookkeeping or other procedures are required for compliance with the rules.

Types of professional skills necessary for compliance with the rules.

No types of professional skills are necessary for compliance with the rules.

Rules have a significant economic impact on small businesses?

No.

Small business regulatory coordinator

The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone [phone], or Email at [e-mail] .

Environmental Analysis

The Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.

Fiscal Estimate

State fiscal effect

None.

Local government fiscal effect

None.

Fund sources affected

PRO.

Long-range fiscal implications

None are anticipated.

Agency Contact Person

James Quast, Program Manager

Phone: [phone]

Email: [e-mail]

Notice of Hearing

Employment Relations Commission

CR 10-019

NOTICE IS HEREBY GIVEN that pursuant to ss. 111.09 , 111.71 , 111.935 (2) , 111.94 , 111.9993 , 227.11 and 227.24 , Stats., and interpreting the Wisconsin Employment Peace Act (WEPA), the Municipal Employment Relations Act (MERA), the State Employment Labor Relations Act (SELRA) and the University of Wisconsin System Faculty and Academic Staff Labor Relations Act (FASLRA), the Wisconsin Employment Relations Commission will hold a public hearing to consider the amendment and creation of rules implementing 2009 Wisconsin Act 28 amendments to WEPA, MERA and SELRA and creation of FASLRA.

Hearing Information

The hearing will be held:

March 11, 2010   Employment Relations Commission
10:00 a.m.   Conference Room
  1457 East Washington Avenue
  Madison, Wisconsin

The hearing site is accessible to people with disabilities.

Copies of Proposed Rules

Copies of the proposed rules can be obtained by contacting Peter Davis at [e-mail] or [phone].

Submittal of Written Comments

Written comments should be received on or before March 22, 2010 by the Wisconsin Employment Relations Commission by email: ( [e-mail] .) fax: [phone]) or mail sent to 1457 East Washington Avenue, Madison, Wisconsin 53707.

Analysis Prepared by the Wisconsin Employment Relations Commission

Statutes interpreted

These proposed administrative rules interpret various provisions of 2009 Wisconsin Act 28 specifically including ss. 111.02 (6) (am) , 111.02 (7) (a) (intro.) , 111.02 (7) (a) 4, 111.02 (7m) , 111.02 (9m) (intro.) , 111.02 (9m) (b) , 111.02 (10m) , 111.05 (2) , 111.05 (7) , 111.70 (1) (a) , 111.70 (1) (b) , 111.70 (1) (j) , 111.70 (1) (ne) , 111.70 (3) (a) 4, 111.70 (3p) , 111.70 (4) (cm) 5, 111.70 (4) (cm) 5s, 111.70 (4) (cm) 6. a, 111.70 (4) (cm) 6. am, 111.70 (4) (cm) 7, 111.70 (4) (cm) 7g, 111.70 (4) (cm) 7r. (intro.) , 111.70 (4) (cm) 8m, 111.70 (4)(d) 2. a, 111.70 (4) (m) 6, 111.81 (3h) , 111.81 (7) (g) , 111.81 (9k) , 111.81 (17m) , 111.815 (1) and (2) , 111.825 (2) (g) , (h) and (i) , 111.825 (2g) , 111.825 (3) , 111.825 (4) , 111.83 (1) , 111.83 (5m) , 111.84 (2) (c) , 111.905 , 111.91 (1) (cg) , 111.91 (2) (n) , 111.91 (2) (nm) , 111.91 (2c) , 111.91 (1) (a) , 111.92 (2m) , 111.935 and 111.95 - 111.9993 .

Statutory authority

Sections 111.09 , 111.71 , 111.935 (2) , 111.94 , 111.9993 and 227.11 , Stats.

Explanation of agency authority

The Wisconsin Employment Peace Act, the Municipal Employment Relations Act, the State Employment Labor Relations Act and the University of Wisconsin System Faculty and Academic Staff Labor Relations Act all require that the Commission adopt administrative rules to regulate various proceedings.

Related statute or rule

None.

Plain language analysis

The Wisconsin Employment Relations Commission has reviewed its rules concerning procedures in the administration of the following portions of Chapter 111 , Stats., for the purposes of correcting errors in its comprehensive 2006 rules review and revision, amending or creating new rules concerning changes Subchapters I, IV and V, and creating new rules concerning the newly-created Subchapter VI. Those Subchapters consist of the following Acts:

Subchapter I — the (Wisconsin) Employment Peace Act (WEPA)

Subchapter IV — the Municipal Employment Relations Act (MERA)

Subchapter V — the State Employment Labor Relations Act (SELRA)

Subchapter VI — the University of Wisconsin System Faculty and Academic Staff Labor Relations Act (FASLRA)

Overall Objectives

The overall objectives of the proposed rules are:

•   correcting errors/omissions made during the comprehensive 2006 rules review/revision

•   conforming to changes in WEPA, MERA and SELRA

•   establishing procedures concerning the newly-created FAFSRA.

•   removing internal inconsistencies

Changes Common To All Or Many Chapters

The newly-created ch. ERC 34 closely parallels ch. ERC 32 , with numerous references to the corresponding sections of ch. ERC 32 .

Chs. ERC 60 - 68 concerning the newly-enacted FASLRA replicate the corresponding chapters in the SELRA rules in chs. 20 - 28 . Accordingly, as in the 2006 review/revision, an effort has been made, wherever possible, to maintain parallelism among the chapters concerning parallel subject areas under WEPA, MERA, SELRA and FASLRA. To avoid unnecessary repetition, references to parallel provisions elsewhere in the rules have been utilized instead of repeating parallel text. In general, MERA rules have been referenced in the WEPA, SELRA and FASLRA chapters instead of repeating the parallel text. References to the hearing procedures in ch. ERC 18 have been utilized extensively throughout the rules.

Numerous references to "practice and procedures" have been changed to "practice and procedure" so that the usage of that phrase is uniform throughout the rules.

Changes Specific To Particular Chapters

Giving effect to revisions of the definitions of fair share and maintenance of membership agreements in ss. 111.02 (7m) and (9m) , Stats., respectively, s. ERC 8.01 and the title of ch. ERC 8 have been revised to make that existing chapter regarding fair share and maintenance of membership referenda applicable to a s. 111.02 (7) (a) , Stats., employer of day care providers.

Correcting an error in s. ERC 12.02 (6) (b) 4. , that section regarding the contents of a complaint case notice of hearing has been revised so that it conforms with the existing requirement in s. ERC 12.03 (1) that each respondent shall file an answer.

Correcting an error in s. ERC 50.04 (4) a new second sentence has been added paralleling the second sentence of s. ERC 13.04 (4) .

Under the newly-enacted ss. 111.935 , Stats., the new ch. ERC 29 provides a procedure by which a labor organization can attain certification as the exclusive collective bargaining representative of a bargaining unit of research assistants (newly-defined in s. 111.81 (7m) , Stats.), by means of a WERC administrative determination based on employee-signed authorization cards, in lieu of a secret ballot election. The new ch. ERC 29 has been generally patterned after the representation election procedures in ch. ERC 13 . However, because there is no other Wisconsin labor relations provision for an authorization card majority based determination of representative, the new chapter includes a variety of new and unique elements:

•   The new procedure has been structured as a separate chapter onto itself, rather than included in the SELRA representation elections chapter, ch. ERC 23 .

•   Consistent with the language of s. 111.935 , Stats., that once a card majority is determined "the collective bargaining unit is established", the new procedure is made available only with regard to bargaining units that are currently unrepresented (e.g., Section title, s. ERC 29.01 ).

•   The new procedure is an optional alternative to a secret ballot election, not a preclusive replacement of the secret ballot election procedure. (e.g., ss. ERC 29.01 ; see also, s. ERC 29.07 (4) ).

•   A labor organization is permitted to file both a petition under the new procedure and a petition for secret ballot election regarding the same bargaining unit. (s. ERC 29.02 (4) (b) ).

•   The processing of a petition filed under the new procedure will take precedence over the processing of a petition for secret ballot election regarding the same bargaining unit filed by the same labor organization or by a competing labor organization. (s. ERC 29.07 (4) ).

•   Specific time and content standards for authorization card validity are included. A petition must be supported by authorization cards signed by a majority of the employees in the bargaining unit when the petition was filed. To be valid, authorization cards are to include the employee name and department, employee signature, and the date, time and location of signature; must contain the statutory definition of the bargaining unit involved; and must contain statements reflecting that the employee favors representation by the named labor organization, that the card was signed freely and without coercion, that the card is in effect for one year and not revocable, but that the employee is permitted to sign another such card in support of a different labor organization; and the card must have been signed by the employee within one year prior to the date of filing of the petition. (s. ERC 29.02 (3) and 29.04 (2) ).

•   Specific provisions govern the effect of the filing of a competing labor organization's petition for card-based certification regarding the same bargaining unit as to which another labor organization's earlier such petition is pending. If the petitions are filed within 10 days of one another, both will be processed and a secret ballot election will be conducted in the unlikely event that both petitions are determined to have majority card support. A petition filed more than 10 days after the filing of an earlier petition regarding the same unit, will not be processed until the processing of the earlier petition is completed, and then only if the earlier petition is dismissed. (s. ERC 29.07 (3) ).

•   Gives certification based on authorization card majority the same effect as a certification based on secret ballot election. (s. ERC 29.07 (5) ).

•   Provides for WERC release of the numbers of bargaining unit employees and of valid cards counted. (s. ERC 29.04 (2) (b) ).

•   Specifies that post-determination objections procedures are available regarding objections to the conduct of the WERC-s administrative determination as to the existence of an authorization card majority or to conduct affecting the results of the WERC's determination. (s. ERC 29.05 ).

•   Prohibits disclosure of the cards or the names of employees signing cards unless objections cannot be fairly resolved without such disclosure. (s. ERC 29.06 (1) ).

In response to the 2009 Act 28 repeal of the Qualified Economic Offer and replacement of special provisions regarding bargaining units of school district professional employees with special provisions regarding bargaining units of all school district employees, a new ch. ERC 34 has been created to cover all school district employee bargaining units, and the titles and scope sections of chs. ERC 32 and 33 have been amended. As a result, chs. ERC 32 and 34 will be the chapters generally applicable as regards disputes involving non-school district and school district employee bargaining units, respectively, with chs. ERC 33 and 33 Appendix applying only to petitions concerning school district professional employee collective bargaining agreements covering periods ending June 30, 2009. (ss. ERC 32.01 , 33.01 , and ch. ERC 34 ).

Chapters ERC 40 regarding the ad hoc roster and 50 regarding labor-management cooperation services have been updated to include references to the newly-enacted FASLRA. (ss. ERC 40.01 and 50.01 ).

New chs. ERC 60 - 68 have been created to provide procedures relating to the newly-enacted FASLRA. Because FASLRA parallels SELRA in many respects, the new chapters replicate the corresponding existing chs. ERC 30 - 38 concerning SELRA procedures.

Comparison with federal regulations

None.

Comparison with rules in adjacent state labor relations agencies

See the Table on following pages.

Summary of factual data and analytical methodologies

Not applicable.

Analysis and supporting documents used to determine effect on small business

Not applicable.

Effect on small business.

None.

Fiscal Estimate

These proposed rules have no fiscal effect.

Agency Contact Person

Peter G. Davis

Phone: [phone]

Email: [e-mail]

Description of or reference to WERC rule changes	Question regarding other agencies' rules	Answer regarding other agencies' rules
CHANGES COMMON TO ALL OR MANY CHAPTERS		AGENCY Name and Source of Rules cited:
	1. What subject areas are covered by the agency's rules? Wisconsin Employment Relations Commission Chapters ERC Private Sector 1. private sector general 2. private sector complaint 3. private sector representation election 4. private sector referendum 5. private sector grievance arbitration 6. private sector mediation 7. private sector unit clarification 8. private sector referendum UW Hospital and Clinics Authority 9. private sector discretionary declaratory rulings Municipal Sector 10. municipal sector general 11. municipal sector election 12. municipal sector complaint 13. municipal sector mediation 14. municipal sector fact finding 15. municipal sector referendum 16. municipal sector grievance arbitration 17. municipal sector unit clarification 18. municipal sector bargaining scope declaratory rulings 19. municipal sector discretionary declaratory rulings State Sector 20. state sector general 21. state sector election 22. state sector complaint 23, state sector grievance arbitration 24. state sector mediation 25. state sector fact finding 26. state sector referendum 27. state sector unit clarification 28. state sector discretionary declaratory rulings 29 authorization card majority determination of representative of unrepresented research assistants Municipal Sector Interest Arbitration 30. Municipal interest arbitration involving fire fighting and law enforcement personnel under s. 111.77, Stats. 31. Interest arbitration of disputes involving law enforcement bargaining units in 1st class cities 32. Collective bargaining and interest arbitration in municipal sector disputes not involving law enforcement, fire fighting or school district employees 33. Collective bargaining and interest arbitration in disputes relating to collective bargaining agreements affecting school district professional employees covering periods beginning before July 1, 2009. 33 Appendix. Wisconsin Employment Relations Commission qualified economic offer calculation relating to collective bargaining agreements affecting school district professional employees covering periods beginning before July 1, 2009. 34. Collective bargaining and interest arbitration in municipal sector disputes relating to collective bargaining agreements affecting school district employees covering periods beginning on or after July 1, 2009.	Minnesota Bureau of Mediation Services Minnesota Rules, Chapter 5505 - Private Rules 5505.0100 Definitions. 5505.0200 Purpose, Construction, And Waiver. 5505.0300 Request For Investigation. 5505.0400 Required Information. 5505.0500 Notice Of Hearing And Investigation. 5505.0600 Hearings. 5505.0700 Examination Of Witnesses. 5505.0800 Subpoenas. 5505.0900 Determination Of Representative. 5505.1000 Election Procedure. 5505.1100 Challenge Of Voter. 5505.1200 Consent Election. 5505.1300 Certification Order. 5505.1400 Objections To Certification. 5505.1500 Reconsideration Within One Year. Chapter 5510 - Public Rules Representation Matters And Fair Share Fee Challenges; Proceedings Before The Commissioner Negotiation, Mediation, Impasse Certification, Arbitration, And Intent To Strike Notice Grievance Procedure Chapter 520 LMC - Grant Rules Chapter 5530 - Arbitration Roster Rules 5530.0100 Application. 5530.0200 Policy. 5530.0300 Definitions. 5530.0400 Role Of Bureau. 5530.0500 Status Of Arbitrators. 5530.0600 Arbitrator Qualifications. 5530.0700 Appointment To Roster. 5530.0800 Arbitrator Conduct And Standards. 5530.0900 Panel Selections And Referrals. 5530.1000 Arbitration Proceedings. 5530.1200 Performance Measures. 5530.1300 Disciplinary Or Removal Procedures. Chapter 7315 - Independent Review Rules 7315.0210 Scope. 7315.0300 Policy. 7315.2300 Request For Rehearing. 7315.2400 Petition For Rehearing. 7315.2500 Consideration. 7315.2600 Determination. 7315.2700 Notice Of Rehearing. 7315.2800 Rehearing Procedure. 7315.2900 Decision After Rehearing.
Description of or reference to WERC rule changes	Question regarding other agencies' rules	Answer regarding other agencies' rules
	1. What subject areas are covered by the agency's rules? (Continued) Ad Hoc Roster 40. roster of ad hoc arbitrators and fact-finders Labor-Management Cooperation Services 50. labor management cooperation services UW System Faculty and Academic Staff Sector 20. faculty/academic staff sector general 21. faculty/academic staff sector election 22. faculty/academic staff sector complaint 23, faculty/academic staff sector grievance arbitration 24. faculty/academic staff sector mediation 25. faculty/academic staff sector fact finding 26. faculty/academic staff sector referendum 27. faculty/academic staff sector unit clarification 28. faculty/academic staff sector discretionary declaratory rulings	Michigan Public Employment Relations Commission Michigan Rules R 423.101 - 423.499 - General Rules Part 1. General Provisions Part 2. Mediation Of Labor Disputes Part 3. Fact Finding Part 4. Representation Proceedings. Part 5. Unfair Labor Practice Charges Part 6. Motion Practice Part 7. Hearings Part 8. Filing And Service Of Documents Part 9. Notice Of Public School Strike Or Lockout R 423.501 - 423.514 Administration Of Compulsory Arbitration Act For Labor Disputes In Municipal Police And Fire Departments Iowa Public Employment Relations Board Iowa Rules [621] Chapter 1 General Provisions Chapter 2 General Practice And Hearing Procedures Chapter 3 Prohibited Practice Complaints Chapter 4 Bargaining Unit And Bargaining Representative Determination Chapter 5 Elections Chapter 6 Negotiations And Negotiability Disputes Chapter 7 Impasse Procedures Chapter 8 Internal Conduct Of Employee Organizations Chapter 9 Administrative Remedies Chapter 10 Declaratory Orders Chapter 11 State Employee Appeals Of Grievance Decisions And Disciplinary Actions
Description of or reference to WERC rule changes	Question regarding other agencies' rules	Answer regarding other agencies' rules
	1. What subject areas are covered by the agency's rules? (Continued)	Illinois Labor Relations Board Title 80: Public Officials And Employees Subtitle C: Labor Relations Chapter IV: Illinois Labor Relations Board Part 1200 General Procedures Part 1210 Representation Proceedings Part 1220 Unfair Labor Practice Proceedings Part 1230 Impasse Resolution Part 1240 Police Officer Decertification Proceedings Illinois Educational Labor Relations Board Title 80: Public Officials and Employees Subtitle C: Labor Relations Chapter III: Illinois Educational Labor Relations Board Part 1100 General Procedures Part 1105 Hearing Procedures Part 1110 Representation Procedures Part 1120 Unfair Labor Practice Proceedings Part 1125 Fair Share Fee Objections Part 1130 Collective Bargaining And Impasse Resolution Part 1135 University Of Illinois Bargaining Units
Description of or reference to WERC rule changes	Question regarding other agencies' rules	Answer regarding other agencies' rules
The newly-created ch. ERC 34 closely parallels ch. ERC 32, with numerous references to the corresponding sections of ch. ERC 32. Chs. ERC 60-68 concerning the newly-enacted FAFSRA replicate the corresponding chapters in the SELRA rules in chs. 20-28. Accordingly, as in the 2006 review/revision, an effort has been made, wherever possible, to maintain parallelism among the chapters concerning parallel subject areas under WEPA, MERA, SELRA and FASLRA. To avoid unnecessary repetition, references to parallel provisions elsewhere in the rules have been utilized instead of repeating parallel text. In general, MERA rules have been referenced in the WEPA, SELRA and FASLRA chapters instead of repeating the parallel text. References to the hearing procedures in ch. ERC 18 have been utilized extensively throughout the rules.	2. What is the overall structure of the agency's rules? WERC - separate sets of rules for private, municipal, state and faculty/academic staff sectors plus ad hoc roster and LMC services (see above)	MN BMS - fewer chapters -- separate sets of rules for private and public sectors (public including municipal and state), plus LMC grants, ad hoc roster and rehearing procedures (see chapters list above) MI ERC - single set of rules covering private, municipal and state sectors plus separate set of rules for police-fire interest arbitration Iowa PERB - single set of rules covering municipal and state sectors (no private sector jurisdiction) fewer chapters. (see chapters list above) Ill. LRB - single set of rules covering municipal and state sectors (see chapters list above) Ill. Ed. LRB - single set of rules covering educational institutions in municipal and state sectors -- (see chapters list above)
Numerous references to "practice and procedures" have been changed to "practice and procedure" so that the usage of that phrase is uniform throughout the rules.
CHANGES SPECIFIC TO PARTICULAR CHAPTERS
Giving effect to revisions of the definitions of fair share and maintenance of membership agreements in ss. 111.02 (7m) and (9m), Stats., respectively, s. ERC 8.01 and the title of ch. ERC 8 have been revised to make that existing chapter regarding fair share and maintenance of membership referenda applicable to a s. 111.02 (7) (a), Stats., employer of day care providers.
Correcting an error in s. ERC 12.02 (6) (b) 4., that section regarding the contents of a complaint case notice of hearing has been revised so that it conforms with the existing requirement in s. ERC 12.03 (1) that each respondent shall file an answer.
Correcting an error in s. ERC 50.04 (4) a new second sentence has been added paralleling the second sentence of s. ERC 13.04 (4).
Under the newly-enacted ss. 111.935, Stats., the new ch. ERC 29 provides a procedure by which a labor organization can attain certification as the exclusive collective bargaining representative of a bargaining unit of research assistants (newly-defined in s. 111.81 (7m), Stats.), by means of a WERC administrative determination based on employee-signed authorization cards, in lieu of a secret ballot election. The new ch. ERC 29 has been generally patterned after the representation election procedures in ch. ERC 13.	3. Do the agency's rules provide a procedure by which a labor organization can attain certification as exclusive collective bargaining representative based on authorization cards in lieu of a secret ballot election? WERC - Yes, new ch. ERC 29, applicable only to research assistants in the UW System.	MN BMS - None found. MI ERC - None found. Iowa PERB - None found Ill. LRB - Yes. A"majority interest petition" procedure is available (e.g., 1200.10, 1210.80.) Ill. Ed. LRB - Yes. A "majority interest" procedure is available (e.g., 1110.10 j))
Description of or reference to WERC rule changes	Question regarding other agencies' rules	Answer regarding other agencies' rules
However, because there is no other Wisconsin labor relations provision for an authorization card majority based determination of representative, the new chapter includes a variety of new and unique elements: - The new procedure has been structured as a separate chapter onto itself, rather than included in the SELRA representation elections chapter, ch. ERC 23.	4. If the agency rules include card-based certification procedures, are they structured separately from rules regarding representation elections? WERC - Yes (see note in first column)	MN BMS - No card based procedure found. MI ERC - No card based procedure found. Iowa PERB - No card based procedure found. Ill. LRB - No. The majority interest procedures are integrated with other procedures for attaining exclusive representative status. (e.g., 1200.10) However, there are some separate subsections devoted exclusively to majority interest related provisions. (e.g., 1210.100 b)) Ill. Ed. LRB - No. The majority interest procedures are integrated with other procedures for attaining exclusive representative status (e.g., 1200.10, 1210.80.). However, there are some separate subsections devoted exclusively to majority interest related provisions. (e.g., 111.10.105)
- Consistent with the language of s. 111.935, Stats., that once a card majority is determined "the collective bargaining unit is established", the new procedure is made available only with regard to bargaining units that are currently unrepresented (e.g., Section title, s. ERC 29.01)	5. If the agency's rules include a card-based certification procedure, is that procedure limited to bargaining units that are currently unrepresented? WERC - Yes (see note in first column)	MN BMS - No card based procedure found. MI ERC - No card based procedure found. Iowa PERB - No card based procedure found. Ill. LRB - Yes, majority interest process not an available means of replacing or decertifying an existing representative. (1110.105) Ill. Ed. LRB - Yes, majority interest process not an available means of replacing or decertifying an existing representative. (1210.20) However, majority interest process is available as a means of adding unrepresented employees to an existing represented bargaining unit. (1110.180 a) 1) h)).
- The new procedure is an optional alternative to a secret ballot election, not a preclusive replacement of the secret ballot election procedure. (e.g., ss. ERC 29.01; see also, s. ERC 29.07 (4)).	6. If the agency's rules include a card-based certification procedure, does that procedure preclusively replace a secret ballot election procedure? WERC - No. The secret ballot election procedures in ERC 23 are also applicable to research assistants.	MN BMS - No card based procedure found. MI ERC - No card based procedure found. Iowa PERB - No card based procedure found. Ill. LRB - No. Secret ballot election procedures are also available. (e.g., 1200.10, 1210.80.) Ill. Ed. LRB - Secret ballot election procedures are also available. (e.g., 1110.50 b) 9))
Description of or reference to WERC rule changes	Question regarding other agencies' rules	Answer regarding other agencies' rules
- A labor organization is permitted to file both a petition under the new procedure and a petition for secret ballot election regarding the same bargaining unit. (s. ERC 29.02 (4) (b))	7. If the agency's rules include a card-based certification procedure, is a labor organization permitted to file and have pending at the same time both an election petition and a petition for authorization card-based certification regarding the same unit? WERC - Yes. However, the two petitions will not be processed simultaneously. (see WERC answer to question 7. below)	MN BMS - No card based procedure found. MI ERC - No card based procedure found. Iowa PERB - No card based procedure found. Ill. LRB - Unclear. However, majority interest petition is processed as if it were an election petition if accompanying showing of interest reflects 30% or more support but less than majority support. (1110.105 r)). Ill. Ed. LRB - Unclear. However, filing and withdrawal of a majority interest petition can, in some circumstances, bar petitioner from filing any other representation petition for one year. (1110.50)
- The processing of a petition filed under the new procedure will take precedence over the processing of a petition for secret ballot election regarding the same bargaining unit filed by the same labor organization or by a competing labor organization. (s. ERC 29.07 (4)).	8. If the agency's rules include a card-based certification procedure, does that procedure specify what effect a petition for secret ballot election by the same labor organization or a different labor organization would have on a pending petition for authorization card based certification? WERC - Yes. The petition for card based certification will be processed first, with the election petition processed only if the petition for card based certification is dismissed.	MN BMS - No card based procedure found. MI ERC - No card based procedure found. Iowa PERB - No card based procedure found. Ill. LRB - Majority interest petition is processed as if it were an election petition if accompanying showing of interest reflects 30% or more support but less than majority support. (1110.105 r)). If competing organizations file petitions regarding the same or similar bargaining units, the Board will direct a secret ballot election to determine representation. (1210.100 b) 8)). Ill. Ed. LRB - Unclear. No specific provision found on that subject.
- Specific time and content standards for authorization card validity are included. (ss. ERC 29.02 (3) and 29.04 (2)).	9. If the agency's rules include a card-based certification procedure, does that procedure specify time and content standards for authorization card validity? WERC - Yes. A petition must be supported by authorization cards signed by a majority of the employees in the bargaining unit when the petition was filed. To be valid, authorization cards are to include the employee name and department, employee signature, and the date, time and location of signature; must contain the statutory definition of the bargaining unit involved; and must contain statements reflecting that the employee favors representation by the named labor organization, that the card was signed freely and without coercion, that the card is in effect for one year and not revocable, but that the employee is permitted to sign another such card in support of a different labor organization; and the card must have been signed by the employee within one year prior to the date of filing of the petition.	MN BMS - No card based procedure found. MI ERC - No card based procedure found. Iowa PERB - No card based procedure found. Ill. LRB -Yes. Majority interest petition can be supported by authorization cards, petitions or any other evidence that demonstrates that a majority of the employees in the bargaining unit at the time the petition was filed wish to be represented by the union for purposes of collective bargaining (1210.80 d) 2) a))
Description of or reference to WERC rule changes	Question regarding other agencies' rules	Answer regarding other agencies' rules
		To be valid, evidence of interest must include the employee's name, an original legible signature dated by the employee and a statement that the employee understands that the card may be used in support of a petition to attain representative status without an election; the signature must be dated within 6 months prior to the filing of the petition. (1210. 80 d) 2) c), d), e)) Employees are allowed to withdraw previously-signed statements of support for a labor organization in limited circumstances. Specifically, "Employees may not withdraw authorization cards or other documents evidencing majority support after the filing of a majority interest petition, unless the basis for the withdrawal constitutes evidence of fraud or coercion on the part of the petitioner." (1210.80 e) 6) Ill. Ed. LRB - Yes. Majority interest petition may be supported by current dues deduction authorizations, authorization cards, petitions or other evidence of interest as regards employees in the bargaining unit at the time the petition was filed. (1110.80 a)) Evidence called for on model authorization card included in the rules would suffice as evidence of interest. The model card calls for a statement that the employee favors collective bargaining representation by the named labor organization, the employee's name and employment position, the employee's signature and the date of the signature. (1110.80 a) 3) The signature must be dated within 6 months prior to the filing of the petition (1110.80 d)) Unclear under what circumstances, if any, employees are permitted to withdraw previous manifestations of support for labor organization. The only provision found to refer to such withdrawal reads, "Upon the filing of a petition or at any time thereafter that the case is pending, a party may allege that the dues deduction authorizations and other evidence submitted in support of a designation of representative without an election were subsequently changed, altered, withdrawn, or withheld as a result of employer fraud, coercion, or any other unfair labor practice by the employer. (1110.105 s)).
Description of or reference to WERC rule changes	Question regarding other agencies' rules	Answer regarding other agencies' rules
- Specific provisions govern the effect of the filing of a competing labor organization's petition for card-based certification regarding the same bargaining unit as to which another labor organization's earlier such petition is pending. (s. ERC 29.07 (3)).	10. If the agency's rules include a card-based certification procedure, what provision is made regarding the effect of the filing of a competing labor organization's petition for card based certification regarding the same bargaining unit as to which another labor organization's earlier petition is pending? WERC - Yes. If the petitions are filed within 10 days of one another, both will be processed and a secret ballot election will be conducted in the unlikely event that both petitions are determined to have majority card support. A petition filed more than 10 days after the filing of an earlier petition regarding the same unit, will not be processed until the processing of the earlier petition is completed, and then only if the earlier petition is dismissed	MN BMS - No card based procedure found. MI ERC - No card based procedure found. Iowa PERB - No card based procedure found. Ill. LRB - If competing organizations file petitions regarding the same or similar bargaining units, the Board will direct a secret ballot election to determine representation. (1210.100 b) 8)). Ill. Ed. LRB - Unclear. No specific provision found on that subject. (see generally, 1110.70) Ill. Ed. LRB - Unclear. No specific provision found on that subject.
- Gives certification based on authorization card majority the same effect as a certification based on a secret ballot election. (s. ERC 29.07 (5)).	11. If the agency's rules include a card-based certification procedure, is a card-based certification given the same effect as a certification based on secret ballot election? WERC - Yes.	MN BMS - No card based procedure found. MI ERC - No card based procedure found. Iowa PERB - No card based procedure found. Ill. LRB - No specific provision found to that effect, however, the general integration of majority interest process with election process strongly implies that certifications resulting from each process would be given the same effect. Ill. Ed. LRB - Yes, for example, certification based on majority interest is given the same certification bar effect on other subsequent representation petitions as an election based certification. (e.g., 1110.70)
Description of or reference to WERC rule changes	Question regarding other agencies' rules	Answer regarding other agencies' rules
- Provides for WERC release of the numbers of bargaining unit employees and of valid cards counted. (s. ERC 29.04 (2) (b)).	12. If the agency's rules include a card-based certification procedure, does the procedure provide for the agency's release of the numbers of bargaining unit employees and of the number of valid cards counted? WERC - Yes and yes.	MN BMS - No card based procedure found. MI ERC - No card based procedure found. Iowa PERB - No card based procedure found. Ill. LRB - Yes, at least where the petition results in certification of the petitioner as representative. Preparation of "a tally of the finding of majority support" is specifically called for in connection with the certification of the petitioner as representative. (1210.100 b) 7) B)). However no similar reference is made as regards instances in which the petition is dismissed on the grounds that the showing of interest is inadequate. (1210.11 b) 7) A)). Ill. Ed. LRB - Apparently not. Rules refer only to Board issuance of certification if Board concludes that petition is supported by majority interest. No reference to a tally of any kind. (see generally, 1110.105 e))
Description of or reference to WERC rule changes	Question regarding other agencies' rules	Answer regarding other agencies' rules
- Specifies that post-determination objections procedures are available regarding objections to the conduct of the WERC-s administrative determination as to the existence of an authorization card majority or to conduct affecting the results of the WERC's determination. (s. ERC 29.05).	13. If the agency's rules include a card-based certification procedure, is there a procedure for raising objections regarding conduct affecting the outcome of the procedure? WERC - Yes. Objections can be made to the conduct of the WERC administrative determination and/or to conduct affecting the results of the WERC's determination.	MN BMS - No card based procedure found. MI ERC - No card based procedure found. Iowa PERB - No card based procedure found. Ill. LRB - Yes. Any person (not just parties to the petition proceeding) may submit evidence of fraud or coercion regarding evidence of majority interest during agency investigation phase of processing of petition (1210.80 e) 3). Employer is required to submit any such evidence it may have within 14 days (or more if extended) of the filing of the petition. (1210.100 b) 3). If fraud or coercion by petitioner sufficient to affect the showing of majority interest is proven by clear and convincing evidence, Board will direct an election to determine representation. 1210.100 b) 5) B) Ill. Ed. LRB - Yes. Any person (not just parties to the petition proceeding) may submit evidence of fraud or coercion regarding evidence of majority interest during agency investigation phase of processing of petition. (1110.80 g) Employer is required to submit any such evidence it may have within 14 days (or more if extended) of the filing of the petition. (1110.105 d). If fraud or coercion by petitioner sufficient to affect the showing of majority interest is proven by clear and convincing evidence, Board will direct an election to determine representation. (1110.105 h)) Where majority interest is not shown by petitioner, petitioner will nonetheless be certified as representative without an election upon a showing that petitioner would have had majority interest support but for the fact that ". . . the dues deduction authorizations and other evidence submitted in support of a designation of representative without an election were subsequently changed, altered, withdrawn, or withheld as a result of employer fraud, coercion, or any other unfair labor practice by the employer." (1110.105 s), t))
Description of or reference to WERC rule changes	Question regarding other agencies' rules	Answer regarding other agencies' rules
- Prohibits disclosure of the cards or the names of employees signing cards unless objections cannot be fairly resolved without such disclosure. (s. ERC 29.06 (1)).	14. If the agency's rules include a card-based certification procedure, does the procedure specify under what conditions, if any, the cards or the names of employees signing cards is subject to disclosure to parties other than the petitioner? WERC - Yes. The contents of the cards, including the names of employees signing the cards, will not be disclosed to other than the petitioner, unless objections cannot be fairly resolved without such disclosure.	MN BMS - No card based procedure found. MI ERC - No card based procedure found. Iowa PERB - No card based procedure found. Ill. LRB -"The Board shall maintain the confidentiality of the showing of interest. The evidence submitted in support of the showing of interest shall not be furnished to any of the parties." (1210.80 e) 1). However, "The adequacy of the showing of interest shall be determined administratively by the Board or its agent. The showing of interest determination is not subject to litigation, except upon a finding of a material issue of fact or law relating to fraud or coercion in majority interest petition cases." (1210.80 e) 3) Ill. Ed. LRB - "The Board shall maintain the confidentiality of the showing of interest. The evidence submitted in support of the showing of interest shall not be furnished to any of the parties." (1110.80 f) However, "Except as provided in 1110.105, the showing of interest shall not be subject to collateral attack and shall not be an issue at hearing." Section 1110.105 provides procedures for adjudicating allegations of fraud or coercion regarding the evidence of majority support. (1110.105 f)-i)).
In response to the 2009 Act 28 repeal of the Qualified Economic Offer and replacement of special provisions regarding bargaining units of school district professional employees with special provisions regarding bargaining units of all school district employees, a new ch. ERC 34 has been created to cover all school district employee bargaining units, and the titles and scope sections of chs. ERC 32, 33 and 33 Appendix have been revised. As a result, chs. ERC 32 and 34 will be the chapters generally applicable as regards disputes involving non-school district and school district employee bargaining units, respectively, with chs. ERC 33 and 33 Appendix applying only to petitions concerning collective bargaining agreements covering periods beginning before July 1, 2009. (ss. ERC 32.01, 33.01, ch. ERC 33 Appendix caption, and ch. ERC 34).
Chapters ERC 40 regarding the ad hoc roster and 50 regarding labor-management cooperation services have been updated to include references to the newly-enacted FASLRA. (ss. ERC 40.01 and 50.01).
New chs. ERC 60-68 have been created to provide procedures relating to the newly-enacted FASLRA. Because FASLRA essentially replicated SELRA in all respects, the new chapters replicate the corresponding existing chs. ERC 30-38 concerning SELRA procedures.
---end of comparison table---

Notice of Hearing

Insurance

CR 10-023

NOTICE IS HEREBY GIVEN That pursuant to the authority granted under s. 601.41 (3) , Stats., and the procedures set forth in under s. 227.18 , Stats., the Office of the Commissioner of Insurance (OCI) will hold a public hearing to consider the adoption of proposed rules to revise Subchapter III of Chapter Ins 18 , Wis. Adm. Code, relating to independent review procedures and affecting small business.

Hearing Information

Date:   March 17, 2010

Time:   1:00 p.m., or as soon thereafter as the matter
  may be reached

Place:   OCI, Room 227
  125 South Webster Street, 2 nd Floor
  Madison, WI

Submittal of Written Comments

Written comments can be mailed to:

Julie E. Walsh

Legal Unit - OCI Rule Comment for Rule Ins 18III

Office of the Commissioner of Insurance

PO Box 7873

Madison WI 53707-7873

Written comments can be hand delivered to:

Julie E. Walsh

Legal Unit - OCI Rule Comment for Rule Ins 18III

Office of the Commissioner of Insurance

125 South Webster St – 2 nd Floor

Madison WI 53703-3474

Comments can be emailed to:

Julie E. Walsh

[e-mail]

Comments submitted through the Wisconsin Administrative Rule Web site at: http://adminrules.wisconsin.gov on the proposed rule will be considered.

The deadline for submitting comments is 4:00 p.m. on the 14 th day after the date for the hearing stated in this Notice of Hearing.

Copies of Proposed Rule and Fiscal Estimate

A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the Web site at: http://oci.wi.gov/ocirules.htm or by contacting Inger Williams, OCI Services Section, at:

Phone:   [phone]

Email:   [e-mail]

Address:   125 South Webster Street
  2 nd Floor, Madison WI 53703-3474

Mail:   PO Box 7873, Madison, WI 53707-7873

Analysis Prepared by the Office of the Commissioner of Insurance

Statutes interpreted

Sections 600.01 , 628.34 (12) , and 632.835 , Stats.

Statutory authority

Sections 600.01 (2) , 601.41 (3) , 601.42 (2) , 628.34 (12) , and (632.835 (5) and (8), Stats.

Explanation of agency authority

2009 Wisconsin Act 28 amended the existing independent review definitions and procedures and incorporated two new triggering events for independent review rights and reporting requirements. Newly created provisions include new definitions of coverage denial determinations, preexisting condition exclusion denial and rescission determinations. The Act also created independent review eligibility for preexisting condition exclusion denial determinations and rescissions. The commissioner must render a determination that at least one independent review organization has completed the certification process and is able to effectively provide independent reviews for coverage denial determinations.

Related statutes or rules

Chapter Ins 18 subch. I and II , Wis. Adm. Code.

Plain language analysis and summary of the proposed rule

The proposed rule implements 2009 Wis. Act 28 that expanded existing independent review rights for Wisconsin insureds. The proposed rule amends the existing rule to include the newly created statutory terms of coverage denial determination and preexisting condition exclusion denial determination. As with the amended statute, the rule is modified by replacing the term "adverse determination and experimental treatment determination" with the more inclusive term "coverage denial determination" throughout ch. Ins 18 , subch. III.

The commissioner is directed in s. 632.853 (8) (b) , Stats., to determine that at least one independent review organization has been certified that can effectively provide independent review of preexisting condition exclusion denial determinations and rescissions. In order to make the determination, the proposed rule clarifies what types of denials are eligible under preexisting condition exclusion denial determination reviews and the type of expertise independent review organizations need to render determinations. The proposed rule requires independent review organizations to utilize the expertise of state licensed lawyers and certified actuaries when appropriate. The lawyers and actuaries must be current in their credentialing or licensure and can assist the independent review organization as an advisor or participant on the review panel at the discretion of the organization.

The proposed rule also modifies a portion of ch. Ins 18 , subch. I and II to reflect that insureds not only have a right to independent review but also the grievance process established by insurers. This is a new right for persons that have had a policy rescinded or coverage denied as preexisting. The modifications clarify what is not subject to a grievance or independent review, specifically that administrative issues are not eligible for independent review. The proposed rule also clarifies that when an insurer and insured dispute whether an issue is eligible for independent review, that dispute is eligible for review.

Additionally, the proposed rule includes amended reference that depending upon the type of issue under independent review that the determination may be binding on the insurer and insured. The proposed rule updates the compendium that independent review organizations may use to reflect name or source changes and creates legal resources as a new source of information that can be utilized by the independent review organizations.

Finally, the proposed rule parallels implementation of the new preexisting condition denial and rescission determinations that was available when independent review was first implemented. For eligible preexisting condition coverage denial and rescission determinations that occur after January 1, 2010 the date of the notice from the commissioner that he has certified the availability of an independent review organization to review preexisting condition and rescission issues, insureds will have 4 months to request an independent review. Once the commissioner has published notice that he has certified the availability of an independent review organization to review preexisting condition and rescission issues, insureds will have 4 months to file requests for independent review from the date of the preexisting condition exclusion denial or rescission determination by the insurer or from the date of receipt of notice of the grievance panel decision, whichever is later.

Comparison with federal regulations

There are no existing or proposed federal regulations addressing access to independent review organizations for preexisting conditions and rescissions.

Comparison of rules in adjacent states

Illinois:

In 2000 Illinois enacted the managed care reform and patients right act 215 ILCS 134, initiating external review for insured enrolled in health maintenance organizations a right to external review of medical necessity determinations. On January 5, 2010, Illinois enacted the health carrier external review act that broadens the right to external review to all Illinois residents enrolled in health insurance plans under 215 ILCS 180. The review is limited to adverse determinations and does not include review of preexisting condition denials or rescissions.

Iowa:

Effective January 1, 2000, Iowa enacted a right to external review arising from medical necessity determinations at Iowa Code section 514J. On January 1, 2009, Iowa extended external review to long-term care insurance benefit trigger determinations. Iowa Code section 514G.110. Iowa law does not include external review for preexisting condition denials or rescission determinations.

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 [phone] or at email address [e-mail]

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:   [phone]

Email:   [e-mail]

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—

CR 10-016

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 [phone] 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 [e-mail] . 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

Section 23.22 (2) (a) , Stats.

Statutory authority

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.

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 [phone] or by email at [e-mail] .

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: [phone]

Email: [e-mail]

Notice of Hearings

Natural Resources

Fish, Game, etc., Chs. NR 1—

CR 10-020 , CR 10-025

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 [phone] 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

The department has interpreted the following statutes as providing the authority to promulgate rules regarding hunting, trapping, closed areas and game refuges: ss. 23.09 (2) (b) , 29.014 , 29.053 (3) , 29.059 , 29.089 , 29.192 and 29.193 , Stats.

Statutory authority

Sections 23.09 (2) (b) , 29.014 , 29.053 (3) , 29.059 , 29.089 , 29.192 and 29.193 , Stats.

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.

The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

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: [phone]

Email: [e-mail]

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

Sections 29.014(1) , 29.039 , 29.041 , 29.053 and 227.11 (2) (a) , Stats.

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.

The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

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: [phone]

Email: [e-mail]

Notice of Hearing

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 10-012

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 [e-mail] ; or by calling [phone]. 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:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/air/rules/calendar.htm

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

Sections 227.11(2)(a) and 285.11(1) and (6) , Stats.

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.

The Small Business Regulatory Coordinator may be contacted at [e-mail] , or by calling [phone].

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

CR 10-002

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 [phone] or leave a message with the Teletypewriter (TTY) at [phone] 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

The administrative rule and fiscal note are available on the internet at http://dpi.wi.gov/pb/rulespg.html . A copy of the proposed rule and the fiscal estimate also may be obtained by sending an email request to [e-mail] or by writing to:

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

Sections 115.76 (5) (a) 10. and (b) and 115.78 (1m) , Stats.

Statutory authority

Sections 115.76 (5) (b) and 227.11 (2) (a) , Stats.

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

Subchapter V of Chapter 115 , Stats.

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

Email: [e-mail]

Phone: [phone]

Notice of Hearing

Workforce Development

Unemployment Insurance, Chs. DWD 100-150

CR 10-017

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 [phone] 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

Sections 108.14 (2) and 227.11 , Stats.

Statutes interpreted

Sections 108.04 (1) (b) 1. , (2) (a) 1. , (7) (c) , and (8) (e) , Stats.

Related statutes and rules

Sections 108.04 (2) (a) 2. and 3. , and (b) , Stats.

Chapters DWD 126 and 127

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: [phone]

Email: [e-mail]

Notice of Hearing

Workforce Development

Unemployment Insurance, Chs. DWD 100-150

CR 10-018

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 [phone] 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

Sections 108.08 (1) , 108.14 (2) , and 227.11 , Stats.

Statutes interpreted

Section 108.08 (1) , Stats.

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: [phone]

Email: [e-mail]