Comparison with federal regulations
The Elementary and Secondary Education Act (ESEA) was first enacted in 1965 and reauthorized in 2001 as the No Child Left Behind (NCLB) Act. All school districts in Wisconsin receive some federal funding under ESEA.
To receive funding under the Act, the department is required to submit a plan to the USDE under
20 USC 6311
. In general, the plan must demonstrate that the state has developed and is implementing a single, statewide state accountability system that will be effective in ensuring that all local educational agencies, public elementary schools, and public secondary schools make adequate yearly progress. Under the plan, all Wisconsin school districts and individual schools within each district must meet the state's four adequate yearly progress (AYP) objectives each year. The first two objectives, based on Wisconsin's statewide standardized tests in reading and mathematics, have proficiency targets. The other two objectives are:
•
95 percent of enrolled students participating in statewide reading and mathematics assessments, which include the Wisconsin Knowledge and Concepts Examinations (WKCE) and the Wisconsin Alternate Assessment for Students with Disabilities (WAA-SwD).
•
A high school graduation rate of at least 85 percent or growth of at least 2 percent from the prior year on these indicators and elementary and middle school attendance rates of at least 85 percent or any growth from the prior year on these indicators.
The four AYP objectives apply to all students as well as to subgroups of students of sufficient size. Schools that miss the same AYP objective for one or more student groups for two consecutive years are identified for improvement.
The department applies USDE-approved statistical procedures to ensure decision consistency in reviewing AYP and in identifying schools and districts for improvement. Student proficiency is based on the achievement of students enrolled for the full academic year. District accountability is divided into grade spans. A district must miss the same AYP target across elementary, middle, and high school for two consecutive years to be found in need of improvement. The subsequent years of school and district improvement are described in
Wisconsin Public Schools-Levels of Accountability
, available on the DPI website at
http://dpi.wi.gov/oea/doc/sifilevels.doc
.
Comparison with rules in adjacent states
Illinois, Iowa, Michigan, and Minnesota do not have administrative rules relating to education reform.
Summary of factual data and analytical methodologies
The proposed rule references Wisconsin's state plan that is required under
20 USC 6311
in determining districts or schools that are in need of improvement or low performing. The methods used in making these determinations are complicated and have to be approved by the USDE. The department prefers a consistent approach be used in making these determinations so that state rules do not unintentionally conflict with the federally approved method.
Small Business Impact
The proposed rules will have no significant economic impact nor fiscal impact on small businesses, as defined in s.
227.114 (1) (a)
, Stats.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate
2009 Wisconsin Act 215
requires schools and school districts to implement certain provisions if they are considered in need of improvement for a certain period of time or are considered low performing. The Act also authorizes the state superintendent of public instruction to intervene in a school district if they are considered in need of improvement for a certain period of time or are considered low performing. The Act requires rules to establish criteria and procedures for determining whether a school or school district is in need of improvement and whether a school is among the lowest performing 5 percent of all public schools in the state. In promulgating these rules, the state superintendent is required to consult with the school district or school board president, the school district administrator, and labor organizations representing employees of each school district that is immediately affected by the Act and legislators whose legislative districts include any portion of each school district.
State fiscal effect
The school and school district identification criteria established in the rule will have no fiscal effect as the department already carries out these responsibilities under the No Child Left Behind Act. However, it is not possible to estimate the directives the department may issue under the Act or how much staff time would be required to ensure those directives are carried out properly by schools and school districts. To accomplish the purposes of the Act, work priorities within the department may need to change but it is assumed that such changes can be absorbed by existing staff. It is also assumed that the cost of writing and promulgating the rules required by this Act can be absorbed by the department.
Local government fiscal effect
The schools and school districts identified under the rule may have a fiscal effect associated with implementing the directives under the Act. However, because these schools and school districts receive federal funds to implement many of these provisions, any local costs, if any, are indeterminate. The department does not have data that would indicate the expense to those local schools or school districts.
Anticipated costs incurred by private sector
N/A.
Agency Contact Person
Scott Jones, Special Assistant
Office of the State Superintendent
Phone: (608) 267-9269
Notice of Hearings
Public Instruction
Hearing Information
Date:
July 23, 2010
Time:
9:00 - 11:00 a.m.
Location:
Madison
GEF 3 Building
125 South Webster Street
Room 041
Date:
August 4, 2010
Time:
1:00 - 3:00 p.m.
Location:
Chippewa Falls
CESA 10
725 West Park Avenue
Room BC
The hearing sites are fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call Julie Brilli, Director, Teacher Education, Professional Development and Licensing at
julie.brilli@dpi.wi.gov
or (608) 266-0986 or leave a message with the Teletypewriter (TTY) at (608) 267-2427 at least 10 days prior to the hearing date. Reasonable accommodation includes materials prepared in an alternative format, as provided under the Americans with Disabilities Act.
Copies of Proposed Rule
Lori Slauson
Administrative Rules and Federal Grants Coordinator
Department of Public Instruction
125 South Webster Street
P.O. Box 7841
Madison, WI 53707
Submittal of Written Comments
Written comments on the proposed rules received by Ms. Slauson at the above mail or email address no later than
August 9, 2010
, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by Department of Public Instruction
Statute interpreted
Statutory authority
Explanation of agency authority
Section
115.28 (7) (a)
, Stats., requires the state superintendent to license all teachers for the public schools of the state, make rules establishing standards of attainment and procedures for the examination and licensing of teachers within the limits prescribed in ss.
118.19 (2)
and
(3)
,
118.192
and
118.195
, and prescribe by rule standards and procedures for the approval of teacher preparatory programs leading to licensure.
Section
118.40 (2r) (a)
, Stats., requires the department to promulgate rules to define the term "instructional staff" of charter schools established under s.
118.40 (2r)
, Stats.
Section
121.02 (1) (a) 2.
, Stats., requires the department to promulgate rules to define the term "instructional staff" in charter schools.
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
Plain language analysis
The department proposes modifying ch.
PI 34
, Wis. Admin. Code, to provide for educator license flexibility, clarification, and other minor revisions as follows:
Flexibility:
•
Allowing IHE faculty to supervise clinical students or student teachers if they have experiences other than three years of PK-12 teaching experience.
•
Allowing flexibility for students completing their student teaching placement outside the state of Wisconsin.
•
Allowing a person holding a professional educator license in language arts (English literature and composition, journalism, speech or broadfield) to get another language arts license at the same developmental level if he or she completes a DPI prescribed exam.
•
Allowing a person holding a professional educator license in math or computer science to get a license in math or computer science at the same developmental level if he or she completes a DPI prescribed exam.
•
Allowing a person holding a professional educator license in science (physical science, chemistry, physics, earth and space, environmental, biology, or broadfield) to get another science license at the same developmental level if he or she completes a DPI prescribed exam.
•
Allowing a person holding a professional educator license in social studies (geography, history, political science, economics, psychology, sociology, or broadfield) to get another social studies license at the same developmental level if he or she completes a DPI prescribed exam.
•
Allowing a person holding a professional educator license in foreign language (French, German, Latin, Russian, Spanish, other) to get another foreign language license at the same developmental level if he or she completes a DPI prescribed exam.
•
Allowing a person holding a wide-range license (to teach all ages) to add another wide-range license in another subject based on a minor. This provision applies to specific licenses.
•
Changing the effective period of educational interpreters, school psychologists, and school guidance counselors licenses from 2 or 3 years to 5 years to give individuals enough time to complete stipulations that in some cases require evidence of successful work experience.
•
Requiring that persons teaching in core academic subjects in a charter school have a valid teaching license and one of the following: 1) a major or minor in the assigned subject area, 2) passed an examination prescribed by the department 3) complete a process that verifies content competencies authorized by the department. A school district may continue to request a charter school instructional staff license or permit on behalf of an individual. However, individuals will be required to submit a completed application for the license or permit. In addition, specific information relating to an applicant's specific teaching assignment and his or her qualifications will be required as part of the application process.
•
Moving the procedural requirements of requesting a charter school license from ch PI 8 to ch.
PI 34
for consistency. These requirements include how to request the license and specifying that the individual must volunteer for the assignment in which the license is being requested. This is required, in part, so that these licenses will not be acquired for an individual without the individual's knowledge.
•
Modifying language under the charter permit. A charter permit may be issued to a person assigned to teach in the area of their degree that has not "completed an approved program" as opposed to an already licensed teacher who does "not hold a current license or permit." This subtle change is meant to direct fully licensed teachers that do not meet the new core academic subject license requirements to obtain a one-year emergency license instead of a one-year charter school permit.
•
Clarifying that professional educator licenses may be issued to teachers, administrators or pupil services personnel who completed an approved program either in WI or outside the state and have completed 5 years of teaching, pupil services or administrator experience out-of-state corresponding to their license. As currently written, the rules imply that a professional educator license may only be issued to teachers who completed an approved program out of state (rather than instate) and have at least five years of teaching experience out of state.
Clarification/Minor Revisions:
•
Eliminating definitions that are not used in the rule and are, therefore, unnecessary.
•
Modifying definitions to clarify meaning or intent.
•
Defining "core academic subject" to reflect the definition of core academic subject under the federal No Child Left Behind Act (NCLB). Core academic subjects include English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history and geography. The department has further clarified the "arts" as including music, theatre, and dance.
•
Changing the phrase "continuous process review" to "continuous review process" throughout the rule for clarification.
•
Clarifying that potential nonapproval of an institution of higher education's (IHE) professional program leading to licensure will come from the department rather than a department liaison or consultant.
•
Replacing the term "teaching practice" with "clinical program" throughout the rule as clinical program is a defined term and should be used consistently.
•
Specifying a different effective date/period for licenses issued to mid-term program completers.
•
Clarifying that an initial educator license may be issued to an individual who completed an approved program after August 31, 2004 (the date the new program requirements under ch.
PI 34
became effective) for the first time in a license category.
•
Allowing an initial educator license to be renewed if the individual has not been employed as an educator for at least 3 years (rather than 2) within the 5-year period of issuance.
•
Clarifying that out of state teacher applicants may be issued a professional educator license (rather than an initial license) if they meet certain requirements.
•
Replacing the term "documentation portfolio" with "professional development plan" and three-member "panel" with "team" as the replacements are the appropriate terms to be used.
•
Clarifying that out-of-state applicants may receive an initial educator license in the areas of teaching, pupil services or administration. As currently written the rule appears to only allow for licensure of teachers that apply from out of state and not pupil services or administrator applicants.
•
Clarifying when the credits or professional development plan must be completed prior to renewing a professional educator license.
•
Clarifying that for applicants eligible to renew a professional educator license by completing 6 semester credits, those credits must be directly related to the license held or to the standards established under subchapter II for teachers, pupil services staff or administrators. As currently written, the rule refers only to the teacher standards.
•
Removing the provisions relating to issuing a license based on equivalency or experience from the initial educator license section and creating a new section for these provisions. As currently written, the rules imply that a license based on equivalency or experience may only be issued as an initial educator license.
•
Clarifying that in order to extend an emergency and charter school permit, the applicant must complete at least 6 semester credits or equivalent coursework toward completion of an approved program in the subject or pupil services area of the emergency permit.
•
Eliminating throughout the rule the list of "strands" which list specific subject requirements that must be completed in order to receive a license. Instead of listing strands, the rule will refer to the state's model academic standards which will include the specific subject area requirements. Wisconsin is one of 48 states that have agreed to adopt a common set of standards for various subject areas.
•
Clarifying that a program coordinator license is needed for individuals serving as career and technical education program coordinators.
•
Clarifying that
a person must have a professional educator license before being eligible for an administrator license.
•
Clarifying that a person must complete a clinical program to receive a license as a coach, gifted and talented instructor, library media specialist or reading teacher.
•
Creating language regarding virtual charter school licenses that mirrors statutory language.
•
Updating application provisions and providing additional renewal options relating to educational interpreter deaf and hard of hearing licenses to better reflect current practice.
•
Eliminating references to obsolete licenses (education for employment and local vocational education coordinator) that are no longer issued. It should be noted that although new licenses in these areas are no longer issued, any such valid licenses issued prior to the effective date of this rule are still effective and may be renewed.
Comparison with federal regulations
The federal No Child Left Behind (NCLB) Act requires 100 percent of public school teachers to be highly qualified in "core academic subjects" which are defined as English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, music, art, theatre, dance, history and geography.
On June 3, 2008, the department notified all public schools, including charter schools, that in order to be considered highly qualified in the core academic subjects, an individual must 1) hold a valid teaching license in that subject or 2) hold any valid teaching license with a major or minor or passed the Praxis II content exam in the assigned core academic subject. The proposed rule codifies the requirements in that notice and provides a third option that the notice did not – that an individual complete a process authorized by the department that verifies content competencies. Formerly a charter school license was issued based solely on whether the applicant held any kind of teaching license; not subject-matter expertise. As a result, it is quite possible that holders of Wisconsin's former charter school instructional staff license were not considered highly qualified under the NCLB.
Comparison with rules in adjacent states
Illinois:
•
Common core state standards initiative. Illinois is one of 48 states that have agreed to adopt a common core of state standards for various subject areas.
•
Core subject areas. Illinois lists the same core subject areas listed in this rule and further defines "fine arts" as including dance, drama, music and visual arts.
•
Charter school teacher requirements in core subject areas. To teach a core subject, teachers must do one of the following: pass a content area test specific to the subject, complete a major or equivalent in the subject, hold a master's or higher degree in a field directly related to the subject, hold a National Board for Professional Teaching Standards (NBPTS) or an Illinois master certificate or qualify under a point system. Teachers in charter schools must either meet the above requirements or hold a bachelor's degree, passed the relevant content-area test in each core subject area of teaching responsibility and meet other requirements of Section 27A-10(c) of the School Code.
•
Additional subject area licenses based on taking a test. A teacher can receive an endorsement in a foreign language by taking a test, with no coursework. Currently, a science or social science designation may be added by taking the test only, if the individual currently holds either an old narrow field or a broad field designation.
•
License based on experience or equivalency. None.
Iowa:
•
Common core state standards initiative. Iowa is one of 48 states that have agreed to adopt a common core of state standards for various subject areas.
•
Core subject areas. Iowa defines core content standards as English and language arts, mathematics, science, social studies, and 21
st
century learning skills. The latter includes civic literacy, health literacy, technology literacy, financial literacy, and employability skills.
•
Charter school teacher requirements in core subject areas. Iowa requires the licensure/certification of teachers in charter schools to be identical to those of all other public school teachers.
•
Additional subject area licenses based on taking a test. Iowa does not offer state approved exams and requires an individual to finish regionally accredited coursework to add an endorsement.
•
License based on experience or equivalency. None.
Michigan:
•
Common core state standards initiative. Michigan is one of 48 states that have agreed to adopt a common core of state standards for various subject areas.
•
Core subject areas. Michigan defines core academic curriculum content standards as follows: "Recommended model core academic curriculum content standards shall be developed and periodically updated by the state board, shall be in the form of knowledge and skill content standards that are recommended as state standards for adoption by public schools in local curriculum formulation and adoption, and shall be distributed to each school district in the state. The recommended model core academic curriculum content standards shall set forth desired learning objectives in math, science, reading, history, geography, economics, American government, and writing for all children at each stage of schooling and be based upon the "Michigan K-12 program standards of quality"....
•
Charter school teacher requirements in core subject areas. Michigan considers charter schools to be public schools. Therefore, the same certification laws apply to charters in the same fashion as any other public school. In essence, charter school teachers are required to hold a valid teaching certificate with endorsement in the subjects to which they are assigned to teach.
•
Additional subject area licenses based on taking a test. Michigan requires an individual to complete a state approved endorsement program to receive licensure in an additional subject area.
•
License based on experience or equivalency. Michigan has a new legislation providing for
alternative route certification
. Prerequisites must be met, including passage of the Michigan Test for Teacher Certification basic skills and content examinations before admission to the alternate route program is granted.
Minnesota:
•
Common core state standards initiative. Minnesota is one of 48 states that have agreed to adopt a common core of state standards for various subject areas (except math).
•
Core subject areas. Minnesota defines core academic subjects as language arts; mathematics; science; social studies, including history, geography, economics, and government and citizenship; health and physical education; and the arts.
•
Charter school teacher requirements in core subject areas. Minnesota requires the licensure/certification of teachers in charter schools to be identical to those of all other public school teachers.
•
Additional subject area licenses based on taking a test. Minnesota allows teachers in only the science subjects to get another science license based on taking a state approved test.
•
License based on experience or equivalency. Minnesota has an active portfolio review process. Applicants must pay a $500 fee. Also, applicants must have taught in the area of discipline and demonstrate competency standards.
Summary of factual data and analytical methodologies
Chapter
PI 34
contains the requirements an individual must meet to be licensed as an educator in Wisconsin. It replaced Chapters
PI 3
(containing the requirements an individual must meet to be licensed) in 2004 and PI 4 (containing the procedures and standards for approval of professional education programs leading to licensure) in 2000. Chapter
PI 34
advanced licensure and educator preparation programs to be standards-based and competency-based rather than credit-based.
Since the passage of Chapter
PI 34
ten years ago, changes in teaching, learning, and instructional delivery require further modification to Wisconsin's licensure and educator preparation criteria. Also, modifications need to be made to clarify certain requirements. There is an increasing need for flexibility in licensure to allow rural schools to offer a full range of education offerings to students and allow teachers to more easily obtain licensure in other subjects while meeting the highly qualified teacher provisions under the federal No Child Left Behind Act.
These proposed changes aim to provide more tools to schools and flexibility to educators that at the same time ensure educator quality.
Small Business Impact
The proposed rules will have no significant economic impact nor fiscal impact on small businesses, as defined in s.
227.114 (1) (a)
, Stats.
Fiscal Estimate
Chapter
PI 34
contains the requirements an individual must meet to be licensed as an educator in Wisconsin. The proposed changes aim to provide more tools to schools and flexibility to educators that at the same time ensure educator quality.
State fiscal effect
The rule provisions that are likely to have a state fiscal effect include:
•
Validating discrete tests in each of the areas of language arts (English literature and composition, journalism, and speech), mathematics (or computer science), science (physical science, chemistry, physics, earth and space, environmental, and biology), and social studies (geography, history, political science, economics, psychology, and sociology). Currently, an individual takes a broadfield test in language arts, science or social studies to receive a specific license within that subject. The costs related to examination validation are indeterminate but will likely be absorbed by the agency. It is assumed that the Educational Testing Service will develop the discrete examinations at no cost to the department but may charge a fee to persons taking the test.
•
Developing a process that verifies content competencies for charter school instructional staff teaching in core academic subjects and an equivalency process for individuals to obtain or add additional licenses. The department may solicit bids from higher education institutions and professional associations to plan and provide an appropriate evaluation process to establish the content competencies and equivalency requirements. If an appropriate evaluation process cannot be contracted, the department will have to develop such a process. The department will incur the costs of developing, delivering and administering the evaluation process. These costs are indeterminate. If the department is not able to absorb these costs, it may charge applicants an appropriate fee to cover the costs of the process.
It is unknown whether this rule will have a fiscal effect on the University of Wisconsin (UW) system. A copy of the proposed rules has been submitted to the UW system with a request for a fiscal note.
Local government fiscal effect
By making it easier for teachers to receive additional licenses, the proposed rules may provide flexibility for school districts in making teacher assignments utilizing current staff. Any cost savings associated with such flexibility are indeterminate.
Agency Contact Person
Deborah Mahaffey
Assistant State Superintendent
Division for Academic Excellence
Phone: (608) 266-3361
Notice of Hearing
Regulation and Licensing
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in ss.
15.08 (5) (b)
,
51.30
,
146.82
,
227.11 (2)
and
440.04
, Stats., the Department of Regulation and Licensing will hold a public hearing at the time and place indicated below to consider an order to revise Chapter
RL 7
, relating to the Impaired Professionals Procedure.
Hearing Information
Date:
August 6, 2010
Time:
9:00 a.m.
Location:
1400 East Washington Avenue
Room 121A
Madison, WI
Appearances at the Hearing and Submittal of Written Comments
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to Pamela Haack, Department of Regulation and Licensing, P.O. Box 8935, Madison, WI 53708-8935. Written comments must be received by
August 9, 2010
, to be included in the record of rule-making proceedings.
Copies of Proposed Rule
Copies of this proposed rule are available upon request to Pamela Haack, Paralegal, Department of Regulation and Licensing, Division of Board Services, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708, or by email at
pamela.haack@wisconsin.gov
.
Analysis Prepared by the Department of Regulation and Licensing
Statutes interpreted
Statutory authority
Explanation of agency authority
The Department of Regulation and Licensing is authorized under s.
440.03 (1)
, Stats., to promulgate rules defining uniform procedures to be used by the department and the attached boards, examining boards and affiliated credentialing boards.
Related statute or rule
Plain language analysis
These proposed rules modernize and clarify the language of ch.
RL 7
. Under the current rules, the Impaired Professionals Procedure is an alternative to the disciplinary process. Under the proposed rules, the renamed Professional Assistance Procedure may also be used in conjunction with the disciplinary process.
Comparison with federal regulation
s
None.
Comparison with rules in adjacent states
Illinois:
Each profession is managed independently of other professions. See also section 1285.235 of the Illinois Rules, Mandatory Reporting of Impaired Professionals by Health Care Institutions.
Iowa:
Iowa administrative code s.
653.14
.
http://php.iowa.gov/
about_iphp.html
. Section 653-14.5 (272C) defines who is deemed ineligible to participate in the program.
Michigan:
Section 333, Public Health Code. The Health Professional Recovery Program (HPRP) is administered by a private contractor under the direction of the HPRP and Bureau of Health Professions in the Michigan Department of Community Health. It is funded by participants and insurers. Several professions are included.
Minnesota:
MN Statutes s.
214.31
-214-37. Includes the following professions: chiropractors, dentists, marriage and family therapists, nurses, pharmacists, podiatrists, social workers, veterinarians.
Summary of factual data and analytical methodologies
The Department of Regulation and Licensing created a Task Force consisting of various stakeholder organizations, including the Boards of Pharmacy, Nursing and Medicine, trade associations representing hospitals, doctors, nurses and pharmacists, the Wisconsin Association of Justice Representatives and experts in the treatment of alcohol and drug dependency. The Task Force met six times in 2009 to discuss improvements to the existing procedure. A committee of the Task Force then convened in 2009-2010 to draft the rule changes with the department. All aspects of the procedure were explored in the Task Force meeting, including its effectiveness, requirements for entry, confidentiality, length of participation, terminology, practice restrictions, therapist involvement, disciplinary action and oversight of treatment providers and facilities by department staff and board members. Reports on procedures in other states were presented to the Task Force, in addition to information relating to laboratory facilities and treatment resources.
Analysis and supporting documents used to determine effect on small business
The department does not anticipate a significant fiscal impact on small businesses. The changes are revisions to a program that is in operation and is funded by participants and license holders.
Section
227.137
, Stats., requires an "agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an "agency" in this section.
Small Business Impact
After review by the department's Small Business Review Advisory Committee, it was determined that these proposed rules will have no significant economic impact on a substantial number of small businesses, as defined in s.
227.114 (1)
, Stats. The Department's Regulatory Review Coordinator may be contacted by email at
hector.colon@drl.state.wi.us
, or by calling (608) 266-8608.
Fiscal Estimate
This rule change will have no fiscal impact on the state of Wisconsin or on local units of government.
Anticipated costs incurred by the private sector
The department finds that this rule has no significant fiscal effect on the private sector.
Agency Contact Person
Pamela Haack, Paralegal
Department of Regulation and Licensing
1400 East Washington Avenue, Room 116
P.O. Box 8935, Madison, Wisconsin 53708
Phone: 608-266-0495
Notice of Hearing
Transportation
NOTICE IS HEREBY GIVEN that pursuant to s.
84.01 (35) (c)
, Stats., the Department of Transportation will hold a public hearing to consider the creation of Chapter
Trans 75
, Wis. Adm. Code, relating to bikeways and sidewalks in highway projects.
Hearing Information
Date:
August 4, 2010
Time:
10:00 a.m.
Location:
Hill Farms State Transportation Bldg.
Room 144B
4802 Sheboygan Avenue
Madison, WI
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 Thomas Huber at (608) 267-7757 with specific information on your request at least 10 days before the date of the scheduled hearing. Accommodations such as interpreters, English translators, or materials in alternative format will, to the fullest extent possible, be made available upon a request from a person with a disability to accommodate your needs.
Copies of Proposed Rule
A copy of the rule may be obtained upon request from Thomas Huber, Department of Transportation, Bureau of Planning and Economic Development, Room 901, P. O. Box 7913, Madison, WI 53707-7913. You may also contact Mr. Huber by phone at (608) 267-7757 or via e-mail: thomas.huber @wisconsin.gov to obtain copies of the proposed rule. Copies will also be available at the hearing.
Submittal of Written Comments
The public record on this proposed rule making will be held open until close of business the day of the hearing to permit the submission of comments in lieu of public hearing testimony or comments supplementing testimony offered at the hearing. Any such comments should be submitted to Thomas Huber, Department of Transportation, Bureau of Planning and Economic Development, Room 901, P. O. Box 7913, Madison, WI 53707-7913. You may also contact Mr. Huber by phone at (608) 267-7757.
Analysis Prepared by Department of Transportation
Statutes interpreted
Statutory authority
Explanation of agency authority
2009 Wisconsin Act 28
created s.
84.01(35)
, Stats., which requires the Department of Transportation to ensure that bicycle and pedestrian facilities are included in all new highway construction and reconstruction projects funded in whole or in part from certain state funds or federal funds.
Related statute or rule
Plain language analysis
2009 Wisconsin Act 28
created s.
84.01(35)
, Stats., which requires the Department of Transportation to ensure that bicycle and pedestrian facilities are included in all new highway construction and reconstruction projects funded in whole or in part from certain state funds or federal funds, and sets forth five circumstances under which such facilities are not required. With minor exceptions, this law mirrors the "Complete Streets" policy recommended by the National Complete Streets Coalition, and supported by the Federal Highway Administration as a `livability Initiative.' The Act requires the Department to promulgate rules detailing those circumstances. This proposed rule details those circumstances. Bicycle and Pedestrian facilities may be omitted from qualifying projects only if:
1.
Bicyclists or pedestrians are prohibited by law from using the highway that is the subject of the project. Highway authorities have specific statutory authority to limit highway access by bicycles and pedestrians, and this proposed rule enumerates those authorities.
2.
The cost of establishing bikeways or pedestrian ways would be excessively disproportionate to the need or probable use of the bikeways or pedestrian ways. Under statutes, costs are excessively disproportionate if the cost of the bicycle or pedestrian facility exceeds 20 percent of the total project cost. This proposed rule uses the cost estimates for the construction of the entire project, including bicycle and pedestrian facilities, but excludes design costs and real estate costs, which are difficult to determine at the point that bicycle facilities or sidewalks are being considered. It compares the cost of the bicycle and pedestrian facilities and allows a highway authority to omit either or both if the costs are 20% or more. In some cases, the cost of providing either a bicycle or pedestrian facility might be completed for less than 20% of total project costs, so this proposed rule considers these facilities separately, to require spending up to 20% of total project costs on bicycle or pedestrian facilities, or both. The proposed rule prioritizes sidewalks, but allows the highway authority to choose whichever facility it determines provides the best value. The rule also considers the bicycle or pedestrian facility cost to be only the marginal cost (the costs not otherwise required for the roadway project) of adding or expanding any bicycle or pedestrian facility. Whenever additional real estate must be purchased, the rule considers which facility (travel lane, bikeway or sidewalk) is the primary demand for more real estate and apportions those real estate costs accordingly. Bikeways and sidewalks typically lie at the outermost edge of a highway and are most likely to lie on any newly-acquired real estate, but real estate costs are not properly attributable to those facilities if existing highway right-of-way is sufficient for them and where, for example, the demand for an additional travel lane is `crowding out' the sidewalk or bikeway.
3.
Establishing bikeways or pedestrian ways would have excessive negative impacts in a constrained environment. The proposed rule defines a constrained environment to be any location in which the addition of standard-width bicycle and pedestrian facilities would require the destruction of any building or other structure, improvement or landscaping adjacent to the highway, where such destruction would dramatically reduce the aesthetic value or functionality of the remaining area, or where the environmental documentation process shows would result in an unreasonable loss of natural resources, or sites of historical or archeological significance. The proposed rule specifies minimum widths of the bicycle or pedestrian facilities, and allows them to be narrowed, within limits, to fit within the area available for them.
Where real estate is acquired for a new or widened travel lane in a constrained environment, the `constraint' might be eliminated. In such cases, the highway authority shall consider whether the area remains a constrained environment after real estate is acquired.
4.
There is an absence of need for the bikeways or pedestrian ways, as indicated by sparsity of population, traffic volume, or other factors. The proposed rule distinguishes between development densities and land uses and allows the omission of bicycle and pedestrian facilities in areas that typically have little bicycle or pedestrian use and where future growth is not expected. The proposed rule does not allow omission of these facilities in any `urban area' or `semi-urban district' under this exception, regardless of existing demand for those facilities.
5.
The community where pedestrian ways are to be located refuses to accept an agreement to maintain them. This exception applies only where the local government lacks snow and ice removal equipment required to maintain the facilities and where these types of facilities do not exist and are not required. The proposed rule specifies that pedestrian facilities cannot be omitted from any national highway system project due to the absence of any maintenance agreement.
Finally, the proposed rule requires documented justification for omitting these facilities due to excessive costs, and requires the Department to approve that justification and omission, as a condition of receiving state and federal funds for the underlying highway project. For bikeways or sidewalks omitted for reasons other than excessive costs, the rule allows the department to request written justification for the omission and, if requested, prohibits the department from funding the highway project unless the department approves the omission and justification. The proposed rule also requires local highway authorities to agree, in writing, to maintain any sidewalks included in all new highway construction and reconstruction projects subject to this proposed rule, as a condition of eligibility for federal funds for that project.
Comparison with federal regulations
Federal regulations require the Department to give full consideration to the safe accommodation of pedestrians and bicyclists during the development of Federal-aid highway projects, and during the construction of such projects. The same regulations make qualifying bicycle and pedestrian facilities eligible for federal highway funds.
23 USC 217
(g).
On February 28, 2000, the Federal Highway Administration issued "A U.S. DOT Design Policy: Integrating Bicycling and Walking Into Transportation Infrastructure" which sets forth a policy for the inclusion of bicycle and pedestrian facilities in federally-funded transportation projects, as required by TEA-21 and codified at
23 USC 217
. On March 15, 2010, the U.S. Department of Transportation announced a new policy "to incorporate safe and convenient walking and bicycling facilities into transportation projects" and encouraging states, local governments, and others to go beyond minimum design standards and requirements to create safe, attractive, sustainable, accessible, and convenient bicycling and walking networks. The policy finds its authority in numerous congressional laws and federal regulations, including federal highway planning requirements and provisions for non-motorized highway users, prohibitions against `route severance' in which highway projects leave unconnected remnant facilities, and pedestrian accessibility requirements under the Americans with Disabilities Act. The Federal Highway Administration has issued various policy guidance memoranda to implement these policies.
The recently enacted Wisconsin law, s.
84.01 (35)
, Stats., appears consistent with the federal guidelines, except that state law includes two exceptions not expressly authorized under federal policy. First, the state exception for sidewalks where the local governmental unit refuses to accept responsibility for maintenance is not authorized by federal law and cannot be used on any highway that is part of the national highway system. Omitting sidewalks from these projects for this reason may cause the federal government to decline federal funds for the project. Accordingly, this proposed rule makes this exception inapplicable on any project on the national highway system. Next, the state exception for excessive negative impacts in a constrained environment is not expressly authorized, but may be permissible under federal policy if these considerations are properly addressed in the environmental review process for the overall project.
Comparison with rules in adjacent states
None of the states appear to have promulgated "Complete Streets" rules, though all states have some laws and regulations relating to bicycle and pedestrian accommodations along highways.
Michigan:
Michigan has adopted no administrative rules implementing the federal "Complete Streets" regulations and policy. Various municipalities within Michigan have adopted policies implementing "Complete Streets," including Ann Arbor.
Minnesota:
Minnesota statute 160.262 requires the Minnesota Department of Transportation to
adopt model standards for the establishment of recreational vehicle lanes on and along proposed and existing public highways. The law requires the model standards to include the following: (a) criteria for desirability of a lane in any given location, (b) provision for maintenance of the lanes, and (c) the placement of the lanes in relation to roads. The model standards govern state trunk highways, but could be applied to local roads, or modified to fit local circumstances, if local highway authorities so choose.
Minnesota has rules establishing "Criteria For Desirability Of Lanes" for use by bicycles and pedestrians. The rules, at ch. 8810.6300 Minn. Admin. Code, provide the circumstances under which the Department will consider adding lanes as part of a project, but do not seem to require those facilities. The rules list 12 factors to consider that could affect a decision to include bicycle or pedestrian lanes.
Illinois:
Illinois has enacted at 605 ILCS 30 a
statute called "The Bikeway Act" administered by the Illinois Department of Transportation.
The Bikeway Act authorizes the construction and designation of bikeways, but does not appear to require the inclusion of bikeways in highway projects.
The Illinois Department of Transportation has adopted a policy of Bicycle and Pedestrian Accommodations dated May 1, 2002, available at:
http://dot.state.il.us/desenv/BDE%20Manual/BDE/pdf/chap17.pdf
.
The policy follows the American Association of State Highway and Transportation Officials'
(
"
AASHTO") publication "Guide for the Development of Bicycle Facilities" as the basis for design guidance. Further guidance is provided in the FHWA publication "Selecting Roadway Design Treatments to Accommodate Bicycles." In general, the policy seems to require only that highway officials "Consider accommodating bicycles and pedestrians on all projects," except controlled access highways and pavement resurfacing projects that not widen the roadway. The policy establishes five warrants that, if present, require the inclusion of bicycle facilities in a highway project. The policy establishes six warrants that, if present, will make pedestrian accommodations "considered appropriate if they are not already available." Illinois' Department of Natural Resources also administers the "Illinois Bicycle Path Grant Program"
under Title 17, Section 3040, Ill. Adm. Code.
The purpose of the program is to provide financial assistance to eligible local units of government to assist them in the acquisition, construction, and rehabilitation of public
off-road
, non-motorized bicycle paths and directly-related facilities in Illinois.
Iowa:
On February 22, 2010, an Iowa legislator introduced House File 2506, which would enact "Complete Streets" legislation. The bill was referred to committee with no further action taken. The Iowa Administrative Code, s. 761—150.4(306), requires the replacement of existing routes moved as result of a highway project on a `primary road,' and requires the Iowa Department of Transportation to "consider the impacts to pedestrian accommodation at all stages of the project development process and encourage pedestrian accommodation efforts when pedestrian accommodation is impacted by highway construction." The administrative code makes bicycle and pedestrian facilities eligible for highway funding whenever included as part of a highway project, but does not otherwise appear to require they be included.
Summary of factual data and analytical methodologies
This rule is proposed as required by s.
84.01 (35) (c)
, Stats. The rule is consistent with the Department's design criteria for bicycle and pedestrian facilities as published in the "Facilities Development Manual."
Analysis and supporting documentation used to determine effect on small businesses
This proposed rule neither requires nor prohibits any action on the part of any small business, and the Department foresees no direct or indirect impact on any small business as result of this proposed rule. There may be indirect cost increases on small businesses that own or lease property fronting a highway, as a result of the statute that requires the addition of sidewalks on certain highway projects. This rule will not impose any indirect costs on any small business, as it provides only exceptions under which sidewalks and bikeways may be omitted from certain highway projects.
Small Business Impact
This proposed rule has no effect on small business.
Fiscal Estimate
The Department estimates that there will be no fiscal impact on the liabilities or revenues of any county, city, village, town, school district, vocational, technical and adult education district, sewerage district, or federally-recognized tribes or bands. This proposed rule provides the exceptions under which sidewalks and bikeways may be omitted from certain highway projects. Any highway authority wishing to omit a sidewalk or bikeway from a highway project may incur some expenses in determining whether that facility is eligible for omission under this rule and, in some cases, to document eligibility or to apply for Department approval of that omission. Omitting a sidewalk or bikeway required by statute, following the procedures created by this rule, may require, for example, calculating the cost of adding a sidewalk or bikeway to determine whether it is excessively costly as compared with total estimated project costs. In effect, the only costs associated with the rule are those incurred in order to determine whether the highway authority can avoid the greater costs of adding sidewalks or bikeways required under statute. Local governmental units can avoid any costs associated with this rule by including sidewalks and bikeways in all qualifying highway projects, as required by statute.
Anticipated costs incurred by private sector
The Department estimates that there will be no fiscal impact on state or private sector revenues or liabilities as result of this proposed rule. Any costs borne by state or private sector revenues are the product of a statute that requires the addition of sidewalks and bikeways in certain highway projects. That statute may require the addition of sidewalks abutting business property, which may result in the local governmental unit imposing special assessments for sidewalks.
Agency Contact Person
Thomas Huber, Dept. of Transportation
Bureau of Planning and Economic Development
Room 901, P. O. Box 7913
Madison, WI 53707-7913
Phone: (608) 267-7757
