42 USC 674
(4) (A) defines "foster care maintenance payments" as payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, reasonable travel to the child's home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.
As part of the Fostering Connections to Success and Increasing Adoptions Act of 2008,
42 USC 675
(1) (G) was created and
42 USC 674
(4) (A) was amended to add the phrase "reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement."
Comparison with rules in adjacent states
The assessment tool prescribed by the department is used statewide in Iowa and Illinois and is used parts of Minnesota and Michigan. Michigan and Illinois have a levels of care system for foster homes.
Summary of factual data and analytical methodologies
The non-statutory requirements of the rule are based on recommendations from the Out-of-Home Care/Adoption Committee and the Foster Parent Training Committee. The committees have worked with the department for the past 5 years to incorporate new federal laws into state law and policy by referring to other state models and national standards of child welfare practice. For the past 2 years, both committees have focused on developing policy to implement the levels of care and foster parent training initiatives in
2009 Wisconsin Act 28
. Both committees have statewide membership of staff from counties, tribes, private child-placing agencies, foster and treatment foster parents, court personnel, advocacy agencies, and state government.
Analysis used to determine effect on small business
The proposed rule will affect private child-placing agencies, some of which are small businesses. The policies in the rule were developed in collaboration with members of the Foster Parent Training Committee and the Out-of-Home Care/Adoption Committee, which included representatives from child-placing agencies.
Much of the rule is based on current practices of the majority of agencies supporting treatment foster care. The sections on agency responsibilities were part of DCF 38 and have been rewritten into DCF 56 with few changes. Representatives from child-placing agencies indicated that their agencies already require foster parents to have as much or more than the training hours in the proposed rule. Many agencies that serve treatment foster parents and treatment foster children with higher needs already have a levels or intensity system with different foster parent qualifications, training, and payments. The rule will put structure and consistency to the levels of care that will help counties know what services they are purchasing as they work with different private agencies that provide similar services. Existing treatment foster homes will be grandfathered in as Level 3 foster homes and existing shift-staffed treatment foster homes will be grandfathered in as Level 5 foster homes. Some private child-placing agencies will choose to offer Level 4 foster homes and will certify these foster parents under the emergency and proposed rules. The administrative cost will be minimal.
In addition, the department will be providing 6 hours of the new pre-placement training without charge to the agencies. The department is also creating online training to allow agency staff to receive certification and recertification in administering the standardized assessment tool without charge.
Effect on Small Business
The rule will affect small businesses, but will not have a significant economic effect on a substantial number of small businesses.
Fiscal Estimate
State fiscal effect
Indeterminate.
Local fiscal effect
Indeterminate.
Long-range fiscal implications
None.
Assumptions used in arriving at fiscal estimate
This rule incorporates the administrative rule under Chapter
38
into Chapter
56
to create one universal licensing code for foster care and treatment foster care providers. This is the second phase of creating the Levels of Care system passed in
2009 Wisconsin Act 28
. This rule establishes the requirements for certification at levels 3, 4, and 5. A foster home is licensed at these levels based on a number of factors, including the level of knowledge, skill, training, and experience of the licensee. This rule establishes the minimum amount of training at each of these levels. In addition, this rule mandates the use of the Child and Adolescent Needs and Strengths (CANS) rating tool. This rating tools is designed to consistently identify the needs of children, ensure that providers are addressing those needs, and determine reimbursements to foster and treatment foster parents.
The rule will affect counties and the Department, which operates the child welfare program in Milwaukee County. The rule is not anticipated to affect current foster care and treatment foster care providers. Most existing providers meet the qualifications in the rule and existing providers are grandfathered into the rule.
The implementation of the CANS rating tool may identify some unmet needs for children, which could increase the costs of providing services to these children. Also, the CANS rating tool could more appropriately identify a lesser level of need for children who already are receiving special services, which may decrease costs to serve these children. Additionally, providing children with adequate services may reduce the length of stay for children in out-of-home care, reducing long-term costs. The net effect of these scenarios cannot be determined.
Agency Contact Person
Jonelle Brom, Bureau of Permanence and Out-of-Home Care, Division of Safety and Permanence, (608) 264-6933,
jonelle.brom@wisconsin.gov
.
Notice of Hearing
Commerce
Moveable Soccer Goals, Ch. Comm 9
NOTICE IS HEREBY GIVEN that pursuant to section
167.21 (2)
, Stats., the Department of Commerce will hold a public hearing on proposed rules to create Chapter
Comm 9
, relating to anchorage of moveable soccer goals.
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
|
February 15, 2011
Tuesday
10:00 a.m.
|
Conference Room 3B
Tommy G. Thompson Center
201 W. Washington 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 (608) 266-8741 or (608) 264-8777 (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.
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
February 23, 2011
, 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
jim.quast@wisconsin.com
.
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 Norma McReynolds, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email
norma.mcreynolds@wisconsin.gov
, or at telephone (608) 267-7907 or TDD Relay dial 711 in Wisconsin or (800) 947-3529. Copies will also be available at the public hearing.
Analysis Prepared by Department of Commerce
Statutes interpreted
Statutory authority
Related statute or rule
None known.
Explanation of agency authority
Under
2009 Wisconsin Act 390
, s.
167.21
, Stats., the Department is directed to develop rules to address the securing of movable soccer goals.
Summary of proposed rules
The proposed rules establish minimum standards for the securing of movable soccer goals to lessen the likelihood of the goals tipping over or overturning. The proposed rules apply to both existing and new movable soccer goals. The proposed rules reflect guidelines of the Consumer Product Safety Commission.
Summary of, and comparison with, existing or proposed federal regulations
The federal Consumer Product Safety Commission's has published
Guidelines for Movable Soccer Goal Safety
. The guidelines include a section on anchoring, securing and counterweighting soccer goals. The guidelines were published in 1995.
Comparison with rules in adjacent states
An Internet-based search of the anchoring or securing of movable soccer goals in the states of Illinois, Iowa, Michigan and Minnesota found that none of the states have specific rules or programs regarding the subject.
Summary of factual data and analytical methodologies
The proposed rules were developed by reviewing the provisions under
2009 Wisconsin Act 390
in conjunction with the following documents:
•
ASTM F 1938,
Standard Guide for Safer Use of Movable Soccer Goals
, 2009.
•
ASTM F 2056,
Standard Safety and Performance Specification for Soccer Goals
, 2009.
•
ASTM F 2673,
Standard Safety Specification for Special Tip-Resistant Movable Soccer Goals
, 2008.
•
Consumer Product Safety Commission's,
Guidelines for Movable Soccer Goal Safety
.
Analysis and supporting documents used to determine effect on small business
The proposed rules implement the mandates of
2009 Wisconsin Act 390
regarding the securing of movable soccer goals. The rules would apply to all existing and future movable soccer goals. The department does not believe that the proposed rules will increase the effect on small businesses over the mandates of the Act.
Effect of Small Business
An economic impact report has not been required pursuant to s.
227.137
, Stats.
The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone (608) 267-0297, or Email at
carol.dunn@wisconsin.gov
.
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 costs
None.
Long-range fiscal implications
No long-range fiscal implications are anticipated.
Assumptions used in arriving at fiscal estimate
Under the mandates of
2009 Wisconsin Act 390
, the proposed rules establish minimum standards for the securing of movable soccer goals to lessen the likelihood of the goals tipping over or overturning. The proposed rules apply to both existing and new movable soccer goals. The proposed rules reflect guidelines of the Consumer Product Safety Commission. Owners of moveable soccer goals would be responsible for facilitating proper anchorage. Owners would include any political subdivision of the state, such as school districts, municipal recreational departments and public universities. It is believed that most owners posses the necessary equipment or means to anchor their soccer goals; the unknown variable is whether the necessary time and effort is taken for anchorage when a goal is relocated. The department does not believe that compliance with the rules will impose a significant cost to owners.
Agency Contact Person
James Quast, Program Manager
(608) 266-9292
Notice of Hearing
Commerce
Financial Resources for Businesses and Communities, Chs. Comm 100—
NOTICE IS HEREBY GIVEN that pursuant to section
560.0335 (4)
of the Statutes, the Department of Commerce will hold a public hearing on emergency rules and proposed permanent rules to create Chapter
Comm 103
relating to a disabled veteran-owned business certification program, and affecting small businesses.
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
|
February 15, 2011
Tuesday
1:00 p.m.
|
Third Floor, Room 3B
Thompson Commerce Center
201 W. Washington Avenue
Madison, WI
|
This hearing will be held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call Sam Rockweiler at (608) 266-0797 or at Contact Through Relay at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.
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, via e-mail. Persons submitting comments will not receive individual responses. The hearing record on this rulemaking will remain open until
February 18, 2011
, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. E-mail comments should be sent to
sam.rockweiler@wi.gov
. If e-mail submittal is not possible, written comments may be submitted to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.
Copies of Proposed Rules
The proposed rules and an analysis of the rules are available by entering "Comm 103" in the search engine at the following Web site:
https://health.wisconsin.gov/admrules/
public/Home
. Paper copies may be obtained without cost from Sam Rockweiler at the Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53707, or Email at
sam.rockweiler@wi.gov
, or at telephone (608) 266-0797, or at Contact Through Relay. Copies will also be available at the public hearing.
Analysis Prepared by Department of Commerce
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
227.11 (2) (a)
of the Statutes authorizes the Department to promulgate rules interpreting the provisions of any Statute administered by the Department. Section
560.0335 (4)
directs the Department to promulgate rules for certifying disabled-veteran-owned businesses.
Related statute or rule
Chapters
Comm 104
and
105
contain the requirements for the Department's Woman-Owned Business Certification program and Minority Business Certification program, respectively. Although the statutory directives for those two programs differ somewhat from the statutory directives for certifying disabled-veteran-owned businesses, many of the best practices that the Department has developed in those two programs are extrapolative to certifying disabled- veteran-owned businesses.
Plain language analysis
The proposed rules primarily specify (1) which businesses are eligible for becoming certified in this program; (2) how to apply for certification and recertification; (3) how the certifications will be issued, renewed, and rescinded; and (4) how to appeal a decision by the Department. Parameters are also included for recognizing equivalent certifications that are issued by other public agencies.
Summary of, and comparison with, existing or proposed federal regulations.
Title 13 of the Code of Federal Regulations, Part 125, Subparts A thru E, address the definitions, eligibility requirements, contracting requirements, protest procedures, penalties, and records retention requirements under the federal Small Business Administration's Service-Disabled Veteran-Owned (SDVO) Small Business Concern (SBC) program. The purpose of the SDVO SBC program is to assist these businesses in obtaining a fair share of federal-government contracts, subcontracts, and property sales. An SDVO SBC is one in which at least 51 percent of the business is owned, controlled, and actively managed by service-disabled veterans – or in the case of a veteran with a permanent and severe disability, a spouse, surviving spouse, or permanent caregiver of the veteran. The SDVO SBC must also meet the small-size standards corresponding to the federal North American Industry Classification System code assigned to a contract at the time of the contract offer. Verification eligibility is for a 12-month period.
Title 38 of the Code of Federal Regulations, Part 74, addresses the application guidelines, oversight, and records management requirements of the U.S. Department of Veterans Affairs Center for Veterans Enterprise (CVE) VetBiz Vendor Information Pages (VIP) database. Eligibility for the CVE VIP is based on the type of ownership and control, and the absence of (1) debarment or suspension concerns, (2) false application statements, and (3) significant unresolved financial obligations to the federal government. Applications for the VetBiz VIP verification status must be filed electronically in the VIP database located at wwwVetBiz.gov.
Comparison with rules in adjacent states
An Internet-based search of state-level rules in Minnesota, Iowa, Illinois, and Michigan revealed the following information relating to certification of businesses that are owned by disabled veterans.
Minnesota:
Minnesota offers a targeted-group procurement program to help remedy the effects of past discrimination against members of targeted groups. To be considered under the program, a business must be designated as a targeted business by the Minnesota Commissioner of Administration. The criteria for this designation are included in chapter 1230 of the Minnesota Administrative Rules. This chapter addresses certification of small, targeted-group businesses that are at least 51-percent owned and operationally controlled on a day-to-day basis by socially disadvantaged persons, which by definition include individuals with a physical impairment that substantially limits one or more major life activities. This chapter is also similar to the rules proposed in chapter Comm 103 in addressing the application process; documentation of majority ownership and control; issuance or denial of the credential; and use of either an informal review or a statutory, contested-case hearing process for appeals. The rules proposed in chapter Comm 103 differ by applying more narrowly to only veterans with disabilities, and by not being limited to just small businesses.
Iowa:
Chapter
54
of the rules of the Iowa Department of Economic Development establishes a targeted, small-business procurement program for promoting the growth, development, and diversification of small Iowa businesses that are owned by minorities, women and persons with disabilities. Chapter
55
of the rules of that Department establishes a targeted, small-business financial assistance program to assist women, minorities, persons with disabilities, and low-income individuals in establishing or expanding small business ventures in Iowa. Prior to participation in either of these two programs, a business must be certified as a targeted small business under chapter 25 of the rules of the Iowa Department of Inspections and Appeals. Under the definitions in that chapter, a targeted small business (1) is 51-percent or more owned, operated, and actively managed by minorities, women, or persons with disabilities; (2) is located within the state; (3) has an annual gross income of less than $4 million; and (4) is operated for profit. The certification rules in the chapter are similar to the rules proposed in chapter Comm 103 in addressing the application process; documentation of majority ownership and control; issuance or denial of the credential; on-site audits by the Department; decertification; recertification; and use of a statutory, contested-case hearing process for appeals. The rules proposed in chapter Comm 103 differ by applying more narrowly to only veterans with disabilities, and by not being limited to just small businesses.
Illinois:
Title 44, Part 10 of the Illinois Administrative Code implements the Business Enterprise for Minorities, Females, and Persons with Disabilities Act (30 ILCS 575). This Act establishes a goal that at least 12 percent of contracts awarded by state agencies subject to the Act be awarded to businesses which are owned and controlled by minorities, females, or persons with disabilities. These businesses typically cannot have gross sales over the previous three years of $31.4 million or more, including sales from any affiliates. The Act also allows for certain special treatment in contracting with certified businesses; and establishes a Council, Secretary, and, in the Department of Central Management Services, a program function to implement and oversee the Act. Section
10.30
of Part 10 addresses the roles of the State agencies and the Council in achieving compliance with the contract-awarding goals. Under section 10.50, only certified businesses are eligible for the benefits of the Business Enterprise program, and state agencies can count only those expenditures with a certified vendor, or subcontractor, toward meeting the contract-awarding goals. The certification rules in sections 10.50 to 10.72 are similar to the rules proposed in chapter Comm 103 in addressing the application process, documentation of majority ownership and control, issuance or denial of the credential, consideration of certification by another entity, reconsideration, decertification, appeals, and recertification. The rules proposed in chapter Comm 103 differ by applying more narrowly to only veterans with disabilities, by not being limited to just small businesses, and by not accepting certifications from private-sector entities.
Michigan:
No information was found relating to certification of disabled-veteran-owned businesses.
Summary of factual data and analytical methodologies
The data and methodology for developing these proposed rules were derived from and consisted of incorporating the criteria in section
560.0335
of the Statutes; incorporating many of the best practices the Department has developed in its current, similar programs for certifying minority-owned businesses and woman-owned businesses; and reviewing Internet-based sources of related federal, state, and private-sector information.
Analysis and supporting documents used to determine effect on small business
The primary document that was used to determine the effect of the rules on small business was
2009 Wisconsin Act 299
. This Act requires the Department to promulgate rules for certifying disabled-veteran-owned businesses. However, this Act does not require these businesses to become certified, and the proposed rules do not require this certification.
Effect on Small Business
The proposed rules are not expected to impose a negative effect on small business, because the rules only address applying for, receiving, and maintaining voluntary credentials.
Initial regulatory flexibility analysis
1. Types of small businesses that will be affected by the rules.
Businesses that qualify and want to become certified as a disabled veteran-owned business.
2. Reporting, bookkeeping and other procedures required for compliance with the rules.
Each applicant must (1) complete and submit a Department-supplied application, (2) subsequently notify the Department of any changes to the information contained in the application, and (3) complete and submit a Department-supplied application for recertification, for continuation of the certification beyond each three-year certification period.
3. Types of professional skills necessary for compliance with the rules.
No new professional skills would be necessary for compliance with the rules.
4. Rules have a significant economic impact on small businesses?
No.
Small business regulatory coordinator
Any inquiries for the small business regulatory coordinator for the Department of Commerce can be directed to Sam Rockweiler, as listed above.
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
Increase existing revenues.
Increase costs — May be possible to absorb within agency's budget.
Local government costs
None.
Fund sources affected
Pro.
Long-range fiscal implications
None known.
Assumptions used in arriving at fiscal estimate
The applications submitted under this program, as established under
2009 Wisconsin Act 299
, will include revenues that will offset the Department's costs in administering this new program.
The Department estimates that 300 businesses will maintain the credential under this program, at an annual fee of $50.
The rules are not expected to impose any significant, mandated costs on the private sector, because the rules only address applying for, receiving, and maintaining voluntary credentials.
Agency Contact Person
Aggo Akyea
Wisconsin Department of Commerce
Division of Business Development
201 West Washington Avenue, Madison, WI 53703
Telephone: (608) 261-7729
Notice of Hearing
Commerce
Financial Resources for Businesses and Communities, Chs. Comm 100—
NOTICE IS HEREBY GIVEN that pursuant to Section
45 (1) (b)
of
2009 Wisconsin Act 265
, the Department of Commerce will hold a public hearing on emergency rules to create Chapter
Comm 139
, relating to rural outsourcing grants, and affecting small businesses.
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
|
February 16, 2011
Wednesday
10:30 a.m.
|
Third Floor, Room 3B
Thompson Commerce Center
201 W. Washington Avenue
Madison, WI
|
This hearing will be held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call Sam Rockweiler at (608) 266-0797 or at Contact Through Relay at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.
Submittal of Written Comments
Interested persons are invited to appear at the hearing and present comments on the rules. Persons making oral presentations are requested to submit their comments in writing, via e-mail. Persons submitting comments will not receive individual responses. The hearing record on this rulemaking will remain open until
February 21, 2011
, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. E-mail comments should be sent to
sam.rockweiler@wi.gov
. If e-mail submittal is not possible, written comments may be submitted to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.
Copies of Emergency Rule
The rule and an analysis of the rule are available by entering "Comm 139" in the search engine at the following Web site:
https://health.wisconsin.gov/admrules/public/
Home
. Paper copies may be obtained without cost from Sam Rockweiler at the Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53707, or at
sam.rockweiler@wi.gov
in
2009 Wisconsin Act 265
., or at telephone (608) 266-0797, or at Contact Through Relay. Copies will also be available at the public hearing.
Analysis Prepared by Department of Commerce
Statutes interpreted
Statutory authority
Explanation of agency authority
SECTION 45 (1) (b) in
2009 Wisconsin Act 265
requires the Department to promulgate rules for awarding the rural outsourcing grants established in SECTION 45 (1). Section
227.11 (2) (a)
of the Statutes authorizes the Department to promulgate rules interpreting the provisions of any Statute administered by the Department.
Related statute or rule
The Department has rules for several other programs associated with economic and business development grants, but those programs are not targeted specifically to grants to businesses for outsourcing work to rural municipalities.
Summary of rule
The rules in this order redefine the businesses that are eligible for the rural-outsourcing grants awarded under SECTION 45 (1) in
2009 Wisconsin Act 265
.
Summary of, and comparison with, existing or proposed federal regulations
No similar existing or proposed federal regulations or programs were found through review of the Code of Federal Regulations and pertinent federal agency Web sites – including at the US Department of Agriculture, the US Department of Commerce, the US Economic Development Administration, and the US Small Business Administration.
Comparison with rules in adjacent states
Review of existing rules and programs in adjacent States and review of proposed state legislation through the National Conference of State Legislatures did not reveal any similar rules or programs in the adjacent States.
Summary of factual data and analytical methodologies
The data and methodology for developing these rules were derived from and consisted of (1) incorporating the applicable criteria in SECTION 45 in
2009 Wisconsin Act 265
; (2) incorporating applicable best practices the Department has developed in administering similar programs for economic and business development, and (3) reviewing Internet-based sources of related federal, state, and private-sector information.
Analysis and supporting documents used to determine effect on small business
The primary documentation that was used to determine the effect of the rules on small business was SECTION 45 (1) in
2009 Wisconsin Act 265
. This SECTION authorizes the Department to award grants to businesses for outsourcing work to rural municipalities and requires the Department to promulgate rules for administering the program. This SECTION applies its private-sector requirements only to businesses that chose to apply for the grants.
Effect on Small Business
The rules are not expected to impose significant costs or other impacts on small businesses because the rules address submittal of documentation only by applicants that choose to pursue grants for outsourcing work to rural municipalities.
Initial regulatory flexibility analysis
1. Types of small businesses that will be affected by the rules.
2. Reporting, bookkeeping and other procedures required for compliance with the rules.
An application form prescribed by the Department must be completed and submitted to the Department.
3. Types of professional skills necessary for compliance with the rules.
No new professional skills are necessary for compliance with the rules.
4. Rules have a significant economic impact on small businesses.
No.
Small business regulatory coordinator
Any inquiries for the small business regulatory coordinator for the Department of Commerce can be directed to Sam Rockweiler, as listed above.
Fiscal Estimate
State fiscal effect
None.
Local government costs
None.
Long-range fiscal implications
None known.
Assumptions used in arriving at fiscal estimate
Although the rules will newly result in review of documentation relating to issuing grants to businesses for outsourcing work to rural municipalities, the number of these reviews and grants is expected to be too small to result in significant changes in the Department's costs for administering its business development programs. Therefore, the proposed rules are not expected to have any significant fiscal effect on the Department.
The proposed rules are not expected to impose any significant costs on the private sector, because the rules address only voluntary submittal of documentation relating to grants for outsourcing work to rural municipalities.
Agency Contact Person
Mary Gage
Wisconsin Department of Commerce
Bureau of Business Finance and Compliance
P.O. Box 7970, Madison, WI 53707-7970
Telephone (608) 266-2766
Notice of Hearing
Government Accountability Board
NOTICE IS HEREBY GIVEN that pursuant to sections
5.05 (1) (f)
,
227.11 (2) (a)
,
227.16
, and
227.24 (4)
, Stats., and interpreting generally Chapter
11
, Stats., the Government Accountability Board will hold a public hearing to consider adoption of an emergency rule to amend section
GAB 1.28
, Wis. Adm. Code, relating to the definition of the term "political purpose."
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
|
February 16, 2011
1:00 p.m.
|
Government Accountability
Board Office — 3rd Floor
212 E. Washington Avenue
Madison, WI
|
This public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact the person listed below.
Submittal of Written Comments
Comments are to be submitted to the Government Accountability Board, Attn: Shane W. Falk, 212 E. Washington Avenue, 3
rd
Floor, P.O. Box 7984, Madison, Wisconsin 53707-7984, no later than
February 16, 2011.
Statement of Emergency Finding
The Government Accountability Board amends s.
GAB 1.28(3)(b)
, Wis. Adm. Code, relating to the definition of the term "political purpose." Section
GAB 1.28
as a whole continues to clarify the definition of "political purposes" found in s.
11.01(16)(a)1.
, Stats., but repeals the second sentence of s.
GAB 1.28(3)(b)
which prescribes communications presumptively susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.
This amendment to s.
GAB 1.28(3)(b)
is to the rule that was published on July 31, 2010 and effective on August 1, 2010, following a lengthy two year period of drafting, internal review and study, public comment, Legislative review, and consideration of U.S. Supreme Court decisions. Within the context of ch.
11
, Stats, s.
GAB 1.28
provides direction to persons intending to engage in activities for political purposes with respect to triggering registering and reporting obligations under campaign financing statutes and regulations. In addition, the rule provides more information for the public so that it may have a more complete understanding as to who is supporting or opposing which candidate or cause and to what extent, whether directly or indirectly.
Pursuant to §
227.24
, Stats., the Government Accountability Board finds an emergency exists as a result of pending litigation against the Board and two decisions by the United States Supreme Court:
Federal Election Commission (FEC) v. Wisconsin Right to Life, Inc. (WRTL II)
,
550 U.S. 549
(2007) and
Citizens United v. FEC
, 558 U.S. ___, (No. 08-205)(January 21, 2010). Following the effective date of the August 1, 2010 rule, three lawsuits were filed seeking a declaration that the rule was unconstitutional and beyond the Board's statutory authority: one in the U.S. District Court for the Western District of Wisconsin, one in the U.S. District Court for the Eastern District of Wisconsin, and one in the Wisconsin Supreme Court. On August 13, 2010, the Wisconsin Supreme Court temporarily enjoined enforcement of the August 1, 2010 rule, pending further order by the Court.
In the lawsuit in the U.S. District Court for the Western District of Wisconsin, the parties previously executed a joint stipulation asking the Court to permanently enjoin application and enforcement of the second sentence of s.
GAB 1.28 (3) (b)
. On October 13, 2010, the Court issued an Opinion and Order denying that injunction request. In denying the injunction, the Court noted that "G.A.B. has within its own power the ability to refrain from enforcing, or removing altogether, the offending sentence from a regulation G.A.B. itself created" and emphasized that "removing the language—for example, by G.A.B. issuing an emergency rule—would be far more `simple and expeditious' than asking a federal court to permanently enjoin enforcement of the offending regulation."
Wisconsin Club for Growth, Inc. v. Myse
, No. 10-CV-427, slip op. at 2 (W.D. Wis. Oct. 13, 2010). The Court further noted that staying the case would give the Board time to resolve some or all of the pending issues through further rulemaking.
Id.
, slip op. at 14.
In addition, the Board, through its litigation counsel, has represented to the Wisconsin Supreme Court that it does not intend to defend the validity of the second sentence of s.
GAB 1.28(3)(b)
and that it would stipulate to the entry of an order by that Court permanently enjoining the application or enforcement of that sentence.
This amendment brings s.
GAB 1.28(3)(b)
into conformity with the above stipulation, with the representations that have been made to the Wisconsin Supreme Court, and with the suggestions made in the October 13, 2010, Opinion and Order of the U.S. District Court for the Western District of Wisconsin. The Board finds that the immediate adoption of this amendment will preserve the public peace and welfare by providing a simple and expeditious clarification of the meaning of s.
GAB 1.28
for litigants, for the regulated community, and for the general public and by doing so in advance of the 2011 Spring Election and any other future elections.
Analysis Prepared by the Government Accountability Board
Statute interpreted
Statutory authority
Explanation of agency authority
Under the existing statute, s.
11.01 (16)
, Stats., an act is for "political purposes" when by its nature, intent or manner it directly or indirectly influences or tends to influence voting at an election. Such an act includes support or opposition to a person's present or future candidacy. Further, s.
11.01 (16) (a) 1.
, Stats., provides that acts which are for "political purposes" include "but are not limited to" the making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate.
Under s.
5.05 (1)
, Stats., the Board is expressly vested with responsibility for the administration of all Wisconsin laws relating to elections and election campaigns, specifically including chapters 5 through 12 of the Wisconsin Statutes. Pursuant to that responsibility, s.
5.05 (1) (f)
, Stats., gives the Board express statutory authority to promulgate administrative rules "for the purpose of interpreting or implementing the laws regulating the conduct of elections or elections campaigns or ensuring their proper administration." Similarly, s.
227.11 (2) (a)
, Stats., grants state agencies — including the Board — the authority to "promulgate rules interpreting the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute," as long as the rule does not "exceed[] the bounds of correct interpretation." Sections
5.05 (1) (f)
and
227.11 (2) (a)
, Stats., thus give the Board clear and express authority to promulgate rules that interpret and implement the meaning of all Wisconsin laws that regulate or govern the proper administration of election campaigns in this state, including s.
11.01 (16)
, Stats.
Section
GAB 1.28
, as promulgated on August 1, 2010, made a number of changes to the Board's interpretation and implementation of the statutory definition of an act "for political purposes" under s.
11.01 (16)
, Stats. Those changes were fully analyzed and explained in the July 13, 2010, Order of the Government Accountability Board,
CR 09-013
.
The present amendment involves only the repeal of the second sentence of s.
GAB 1.28 (3) (b)
. All other portions of GAB 1.28, including the first sentence of s.
GAB 1.28 (3) (b)
, are unchanged. Moreover, all of the revisions to GAB 1.28 that were effected on August 1, 2010, remain temporarily enjoined pending further order of the Wisconsin Supreme Court. The present amendment has no effect on the continued effectiveness of that injunction.
The first sentence of s.
GAB 1.28 (3) (b)
, provides that any communication that "is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate" is a communication "for political purposes" within the meaning of s.
11.01 (16)
, Stats., and hence is subject to all of the campaign finance regulations under ch.
11
of the Wisconsin Statutes that apply to communications for a political purpose — subject, of course, to any additional requirements or limitations contained in particular statutes.
The second sentence of s.
GAB 1.28 (3) (b)
additionally identifies communications which are susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. That is, any communications that possess the characteristics enumerated in the second sentence of s.
GAB 1.28 (3) (b)
would automatically be deemed communications for a political purpose and, as a result, would automatically be subject to the applicable campaign finance regulations under ch.
11
of the Wisconsin Statutes.
As a result of litigation challenging the validity of the August 1, 2010, amendments to s.
GAB 1.28
, the Board has entered into a stipulation to refrain from enforcing the second sentence of s.
GAB 1.28 (3) (b)
. The Board, through its litigation counsel, has also represented that it does not intend to defend the validity of that sentence and has sought judicial orders permanently enjoining its application or enforcement. This sentence is removed by this emergency rule.
This amendment does not affect the first sentence of s.
GAB 1.28 (3) (b)
, under which individuals and organizations that raise or spend money to make communications that are susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate, are subject to campaign finance regulation under ch.
11
of the Wisconsin Statutes. As previously noted however, all of the August 1, 2010, amendments to s.
GAB 1.28
— including the first sentence of s.
GAB 1.28 (3) (b)
— are currently subject to the August 13, 2010, temporary injunction by the Wisconsin Supreme Court.
Related statute(s) or rule(s)
Plain language analysis
The revised rule will subject to regulation communications that are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The revised rule will subject communications meeting this criterion to the applicable campaign finance regulations and requirements of ch.
11
, Stats. The scope of regulation will be subject to the United States Supreme Court Decision,
Citizens United vs. FEC
(No. 08-205), permitting the use of corporate and union general treasury funds for independent expenditures.
Summary of, and comparison with, existing or proposed federal regulations
The United States Supreme Court upheld regulation of political communications called "electioneering communications" in its December 10, 2003 decision:
McConnell et al. v. Federal Election Commission, et al.
(No.02-1674), its June 25, 2007 decision of:
Federal Election Commission (FEC) v. Wisconsin Right to Life, Inc. (WRTL II)
, (No.06-969and 970), and pursuant to its January 21, 2010 decision of:
Citizens United vs. FEC
(No. 08-205).
The
McConnell
decision is a review of relatively recent federal legislation — The Bipartisan Campaign Reform Act of 2002 (BCRA) — amending, principally, the Federal Election Campaign Act of 1971 (as amended). A substantial portion of the
McConnell
Court's decision upholds provisions of BCRA that establish a new form of regulated political communication — "electioneering communications" – and that subject that form of communication to disclosure requirements as well as to other limitations, such as the prohibition of corporate and labor contributions for electioneering communications in BCRA ss. 201, 203. BCRA generally defines an "electioneering communication" as a broadcast, cable, or satellite advertisement that "refers" to a clearly identified federal candidate, is made within 60 days of a general election or 30 days of a primary and, if for House or Senate elections, is targeted to the relevant electorate.
In addition, the Federal Election Commission (FEC) promulgated regulations further implementing BCRA (generally
11 CFR Parts 100
-
114
) and made revisions incorporating the
WRTL II
decision by the United States Supreme Court (generally
11 CFR Parts 104
,
114
.) The FEC regulates "electioneering communications."
Comparison with rules in adjacent states
Illinois:
Pursuant to Public Act 96-0832, Illinois revised its "electioneering communication" statute in 2009, effective July 1, 2010, to include the "no reasonable interpretation other than an appeal to vote for or against" test, among other revisions. Subject to some delineated exemptions found in 10 ILCS 5/9-1.14, the statute now defines an "electioneering communication" as any broadcast, cable or satellite communication, including radio, television, or internet communication, that:
1)
refers to a clearly identified candidate or candidates who will appear on the ballot, a clearly identified political party, or a clearly identified question of public policy that will appear on the ballot,
2)
is made within 60 days before a general election or 30 days before a primary election,
3)
is targeted to the relevant electorate, and
4)
is susceptible to no reasonable interpretation other than an appeal to vote for or against a clearly identified candidate, a political party, or a question of public policy.
As a result of the adoption of Public Act 96-0832, Illinois is undergoing a substantial revision of its administrative code with respect to campaign finance and disclosure rules. (See proposed Illinois Administrative Code, Title 26, Chapter
1
, Part 100, Campaign Financing, JCAR260100-101389r01). In the context of excluding "independent expenditures" from the term "contribution," Section
100.10(b)(3)
G., of the proposed rules include both electioneering and express advocacy communications as forms of independent expenditures.
Iowa:
Iowa's Administrative Code defines "express advocacy" as including a communication that uses any word, term, phrase, or symbol that exhorts an individual to vote for or against a clearly identified candidate or the passage or defeat of a clearly identified ballot issue. (Chapter
351
—4.53(1), Iowa Administrative Code.)
Michigan:
Michigan statutes define a "contribution" as anything of monetary value made for the purpose of influencing the nomination or election of a candidate or the qualification, passage or defeat of a ballot question. (s.
169.204(1)
, Mich. Stats.) "Expenditure" is defined as a payment of anything of monetary value in assistance of or opposition to the nomination or election of a candidate or the qualification, passage or defeat of a ballot question. (s.
169.206(1)
, Mich. Stats.) Michigan does not have any additional rules defining political purposes.
Minnesota:
Minnesota statutes define a "campaign expenditure" or "expenditure" as the purchase or payment of money or anything of value, or an advance of credit, made or incurred for the purpose of influencing the nomination or election of a candidate or for the purpose of promoting or defeating a ballot question. (s. 10A.01, Subd. 9, Minn. Stats.) "Independent expenditure" is defined as an expenditure expressly advocating the election or defeat of a clearly identified candidate, if the expenditure is not coordinated with any candidate or any candidate's principal campaign committee or agent. (s. 10A.01, Subd. 18, Minn. Stats.) Minnesota does not have any additional rules defining political purposes.
Summary of factual data and analytical methodologies
The factual data and analytical methodologies underlying the adoption of the August 1, 2010 amendments to s.
GAB 1.28
have been described in the July 13, 2010, Order of the Government Accountability Board,
CR 09-013
. The adoption of the present amendment to s.
GAB 1.28 (3) (b)
is predicated on the same data and methodologies and also on developments related to several court cases challenging the validity of the August 1, 2010 amendments to s.
GAB 1.28
. These developments were discussed by the Board in a closed session meeting with its litigation counsel on December 14, 2010. These developments are also being discussed in an open session, public meeting of the Board on December 22, 2010.
Analysis and supporting documentation used to determine effect on small businesses
The rule will have no effect on small business, nor any economic impact.
Effect on Small Business
The creation of this rule does not affect business.
Fiscal Estimate
The creation of this rule has minimal fiscal effect. There may be additional registrants filing reports with the Board and potentially additional enforcement actions that may require staff action. The extent of this potential fiscal impact is undetermined.
Text of Proposed Rule
Pursuant to the authority vested in the State of Wisconsin Government Accountability Board by ss.
5.05 (1) (f)
,
227.11 (2) (a)
and
227.24
, Stats., the Government Accountability Board hereby adopts an emergency rule amending GAB 1.28, Wis. Adm. Code, interpreting ch.
11
, Stats., as follows:
SECTION 1. GAB 1.28 (3) (b) is amended to read:
(b) The communication is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.
A communication is susceptible of no other reasonable interpretation if it is made during the period beginning on the 60th day preceding a general, special, or spring election and ending on the date of that election or during the period beginning on the 30th day preceding a primary election and ending on the date of that election and that includes a reference to or depiction of a clearly identified candidate and:
1. Refers to the personal qualities, character, or fitness of that candidate;
2. Supports or condemns that candidate's position or stance on issues; or
3. Supports or condemns that candidate's public record.
Agency Contact Person
Shane W. Falk, Staff Counsel
Government Accountability Board
212 E. Washington Avenue, 3
rd
Floor
P.O. Box 7984, Madison, WI 53707-7984
Phone : (608) 266-2094
Notice of Hearing
Regulation and Licensing
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in sections
15.08 (5) (b)
,
51.30
,
146.82
,
227.11 (2)
and
440.04
, Stats., and interpreting section
440.03
, 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 Chapters
RL 80
to
86
, relating to licensure and certification requirements if licensed in another state or territory, approved instructors for educational programs and continuing education, examination requirements, rules of professional conduct, and "FIRREA" and AQB criteria.
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
|
February 23, 2011
9:30 a.m.
|
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 the Department of Regulation and Licensing, Division of Board Services, P.O. Box 8935, Madison, WI 53708 or by email to
Kristine1.Anderson@wisconsin.gov
. Written comments must be received by
February 18, 2011
, to be included in the record of rule-making proceedings.
Copies of Proposed Rule
Copies of this proposed rule are available upon request to Kris Anderson, 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
Kristine1.Anderson@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 granted rule-making authority pursuant to s.
227.11
, Stats., and is specifically granted rule-making authority pursuant to ss.
458.03
,
458.06
,
458.08
,
458.085
,
458.13
and
458.24
, Stats.
Related statute or rule
There are no other statutes and rules other than those listed.
Plain language analysis
Changes are being made as delineated to be consistent with "FIRREA" and AQB Criteria, to clarify department references, to clarify certification scopes, to simplify the process for applying for licensure and certification in Wisconsin if licensed in another state or territory, to expand the approved instructors for educational programs and continuing education courses, to clarify credit for such courses, and to expand the rules of professional conduct.
SECTION 1 amends the rule to clarify the meaning of "mass appraisal."
SECTIONS 2, 3, 4, 10, 12 and 16 amend the Notes relating to where applications and information is available.
SECTION 5 creates a rule to simplify the process for applying for licensure or certification in Wisconsin if the applicant is already licensed in another state or territory.
SECTION 6 amends rules to clarify the scope of practice of certified general appraisers and certified residential appraisers.
SECTION 7 amends rules to clarify the requirements for examination.
SECTION 8 amends rules to change the experience requirements.
SECTION 9 creates rules to clarify what standards experience must comply with.
SECTION 11 creates rules to simplify the licensing and certification process for applicants who are licensed or certified in other states or territories.
SECTION 13 creates rules to expand available educational instructors and educational courses and to clarify the granting of credit for such courses.
SECTION 14 repeals and recreates rules to clarify the educational course requirements to become a licensed appraiser, a certified residential appraiser, and a certified general appraiser.
SECTION 15 adds a comma in the first sentence.
SECTION 17 creates rules to expand who is qualified to teach continuing education courses and approval for courses already approved by another state or territory, and clarifies credit for courses that qualify for both continuing education and certification.
SECTION 18 amends the rules of professional conduct to shorten the time to respond to investigation requests and to clarify a reference to state.
SECTION 19 creates rules of professional conduct adding three new circumstances which may be considered unprofessional conduct.
Summary of, and comparison with, existing or proposed federal regulation
Federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA")
The Federal Institutions Reform, Recovery, and Enforcement Act ("FIRREA"),
12 U.S.C. 3331
et seq., (Title XI) was enacted in 1989. Under FIRREA, insured financial institutions and insured credit unions are required to obtain the services of a State certified or licensed appraiser for appraisals conducted in connection with "federally related transactions."
Under FIRREA, the Appraisal Subcommittee of the Federal Financial Institutions Examination Council is required to monitor state appraiser certifying and licensing agencies for the purpose of determining whether a state agency's policies, practices, and procedures are consistent with the federal law. The Appraisal Subcommittee may not recognize appraiser certifications and licenses from states whose appraisal policies, practices and procedures are found to be inconsistent with FIRREA. Before refusing to recognize a state's appraiser certifications or licenses, the Appraisal Subcommittee must provide that state's certifying and licensing agency with a written notice of its intention not to recognize the state's certified or licensed appraisers and ample opportunity to provide rebuttal information or to correct the conditions causing the refusal. A decision of the Subcommittee to refuse to recognize a state's appraiser certifications or licenses is subject to judicial review.
12 U.S.C. 3331
et seq.
In 1997, the Appraisal Subcommittee adopted the
Policy Statements Regarding State Certification and Licensing of Real Estate Appraisers
, which all states must comply with. [The Appraisal Subcommittee's Policy Statements are available at:
http://www.asc.gov
.]
Appraisal Qualifications
Under FIRREA, the state criteria for the qualifications of
certified
real estate appraisers must meet the minimum qualifications criteria for certification established by the Appraiser Qualifications Board (AQB) of the Appraisal Foundation. The minimum qualifications criteria established by the AQB are set forth in the
Real Property Appraiser Qualification Criteria and Interpretations of the Criteria
("Criteria"). The AQB Criteria includes the minimum experience, examination, qualifying education and continuing education requirements that must be satisfied by an individual in order to obtain and maintain a certified appraiser credential. [The AQB Criteria is available on the Internet at
http://www.appraisalfoundation.org
.]
Under FIRREA, the states may establish their own qualifications and requirements for
licensed
appraiser credentials. The states are not obligated to adopt the minimum experience, examination, education and continuing education requirements recommended by the AQB for the
licensure
of real estate appraisers. However, the Appraisal Subcommittee recommends that all states adopt the AQB Criteria established for the licensure of real estate appraisers.
Comparison with rules in adjacent states
The Federal Institutions Reform, Recovery, and Enforcement Act ("FIRREA"),
12 U.S.C. 3331
et seq., (Title XI) was enacted in 1989. Under FIRREA, insured financial institutions and insured credit unions are required to obtain the services of a state certified or licensed appraiser for appraisals conducted in connection with "federally related transactions."
Under FIRREA, all states, including Illinois, Iowa, Indiana, Michigan and Minnesota, that certify real estate appraisers for purposes of conducting appraisals in federally related transactions must assure compliance with the AQB Criteria. In addition, the Appraisal Subcommittee recommends that all states assure compliance with the AQB Criteria for the licensure of real estate appraisers.
Summary of factual data and analytical methodologies
The board reviewed the current federal statutes as well as the rules in adjacent states. The board determined that the current rules needed to be aligned with FIRREA as well as comply with the AQB Criteria for licensure of real estate appraisers. The board considered the suggestions of the Appraisal Subcommittee and board legal counsel to make changes to the current rules.
Analysis and supporting documents used to determine effect on small business
The proposed changes will have an effect on small business. The rule will have a positive impact on small businesses that would like to bring in a real estate appraiser currently licensed in another state. Instead of verifying all of their reports with Wisconsin, the applicant will now be able to have written verification sent from their state of licensure. The businesses will benefit from the increased efficiency of the licensure process which outweighs the additional cost of requesting the verification.
Additionally, the changes will make it easier for licensed appraisers and trainees to meet their educational requirements. These changes increase the number of approved courses and instructors available to licensed appraisers as well as individuals pursuing their licensure. It also lowers the educational requirements for a licensed appraiser or certified residential appraiser to become a certified general appraiser. These educational changes will make it easier for those seeking licensure or to expand their licensure to do so.
The other proposed changes in the rule clarify or eliminate unnecessary sections of the current rules. Therefore, the proposed changes will have little effect, if not a positive effect, on small business.
Section
227.137
, Stats., requires an "agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an "agency" in this section.
Anticipated costs incurred by private sector
The department finds that this rule has no significant fiscal effect on the private sector.
Effect on Small Business
These proposed rules were reviewed by the department's Small Business Review Advisory Committee to determine if the rules will have a significant economic impact on a substantial number of small businesses, as defined in s.
227.114 (1)
, Stats. It was determined that the rules will not have a significant economic impact on a substantial number of small businesses.
The Department's Regulatory Review Coordinator, John Murray, may be contacted by email at
John.Murray@wisconsin.gov
, or by calling 608-266-2112.
Fiscal Estimate
Ongoing cost:
These rule changes will increase reciprocal discipline and thus caseloads with the following additional impact to the department:
520 Attorney hours @ $59 per hour
= $30,680
595 Paralegal hours @ $33 per hour
= $19,635
520 Investigator hours @ $31 per hour
= $16,120
520 LTE appraiser hours @ $35 per hour
= $18,200
35 Operations Program Assoc. hours @ $31 per hour
= $ 1,085
4 Program Associate Supervisor hours @ $23 per hour
= $ 92
Total ongoing costs:
$85,812
Agency Contact Person
Kris Anderson, Paralegal
Department of Regulation and Licensing
Division of Board Services
1400 East Washington Avenue, Room 116
P.O. Box 8935, Madison, WI 53708
Phone: 608-261-2385
Notice of Hearing
Regulation and Licensing
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in sections
15.08 (5) (b)
,
51.30
,
146.82
,
227.11 (2)
and
440.04
, Stats., and interpreting section
440.03
, 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 24
, relating to definitions, duties of brokers, broker disclosure requirements, written proposals, ethical requirements, and educational requirements.
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
|
February 17, 2011
10:30 a.m.
|
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 the Department of Regulation and Licensing, Division of Board Services, P.O. Box 8935, Madison, Wisconsin 53708 or by email to
Kristine1.Anderson@wisconsin.gov
.. Written comments must be received by
February 14, 2011
, to be included in the record of rule-making proceedings.
Copies of Proposed Rule
Copies of this proposed rule are available upon request to Kris Anderson, 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
Kristine1.Anderson@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 granted the authority under s.
452.07
, Stats., to promulgate rules to define professional conduct and unethical practices and to establish guidance for the real estate profession.
Related statute or rule
There are no other statutes or rules other than those listed above.
Plain language analysis
This proposed rule-making order clarifies the rules relating to the ability to retain records in an electronic format, updates and clarifies the rules to reflect statutory changes and clarifies licensees' duties. This rule-making also proposes to update the rules for conduct and ethical practices for real estate licensees, and creates discipline for licensees who do not respond to information requests from the board or department. This encourages the submission of requested information during an investigation.
SECTION 1 clarifies the definition of "agency agreement" by removing the statutory reference and adding a definition that encompasses any written agreement where a client authorizes a broker to provide brokerage services. Additionally, the statutory reference included in "brokerage service" is amended to encompass the entire statutory definition of "broker."
SECTION 2 repeals a note at the end of a section because the statutory reference no longer exists in the rules.
SECTION 3 amends the definition of "builder" to encompass any contract to build with or without a buyer. It removes speculation and contact homes from the definition of "builder" because these definitions are repealed. Additionally, "buyer's broker" is clarified by including the defined term of "agency agreement."
SECTION 4 repeals the definition of "contract home" because it is no longer included in the rules.
SECTION 5 amends the definition of "party" by referencing "transaction" which is defined in the rules.
SECTION 6 repeals the definition of "speculation home" because it is no longer included in the rules.
SECTION 7 creates a definition for "written proposal," which is used in the amended language of the rules and includes a broad range of documents used in the transactions, including notices, offers, counteroffers, and amendments.
SECTION 8 repeals a provision about a licensee's duties to clients because the amended rules include licensee duties to clients.
SECTION 9 amends the title to "disclosure of compensation and interests" to clarify the content of the rules. The SECTION is amended to read "compensation" to clarify the content of the SECTION.
SECTION 10 extends the licensee's ability to accept a fee or compensation to the licensee's principal broker as well as the client.
SECTION 11 removes the requirement for a licensee to obtain prior written consent before engaging in a transaction on his or her own behalf.
SECTION 12 removes the title of a provision because the provision is moved to a prior section.
SECTION 13 renumbers a provision and adds a writing requirement for licensees to disclose compensation they received, or interest they have, when referring clients to another person or entity. It also clarifies the statutory authority by referencing the exemption in a separate sentence.
SECTION 14 repeals and recreates a provision to emphasize the need for prior written consent from a client when a licensee discloses any compensation received, or incentives, from a listing broker. This clarifies the standards for licensees.
SECTION 15 includes a writing requirement to disclosures in this subsection to clarify standards for licensees.
SECTION 16 repeals and recreates a provision to clarify the required statutory disclosure form and the written consent requirements for parties to transactions of one to 4 dwelling units. The rule also creates the ethical requirements that a broker not negotiate on behalf of a non-client.
SECTION 17 adds two standards for brokers in providing services to clients: the first does not allow the broker to negotiate for a client without the statutory required disclosure form; and the second requires the client in a transaction for a one to 4 family dwelling to sign an acknowledgement that they received a statutory disclosure form statement.
SECTION 18 changes "another licensee" to "listing broker." It also specifies that any change in the licensee's representation comply with the statutory disclosure requirements of initial disclosure, clarifying the duties of the licensee.
SECTION 19 amends the rule to encompass "agency agreements" instead of "listing contracts," and refers to "brokers" instead of "listing brokers." Therefore, the broker has the duty to explain to their clients the responsibilities of buyer's and seller's agents and subagents before entering into this agreement. These disclosure requirements protect the client.
This SECTION also amends "listing broker" requirements to encompass any "broker" or broker's salesperson. It imposes the requirement that they receive authorization before acting as a subagent.
Finally, this SECTION amends specific contracts to encompass "written documents," a definition of which is included in the amended rules. It clarifies the duty of the licensee to include whom they represent in the written agreement.
SECTION 21 repeals two sections and recreates them to clarify the requirements for listing brokers and licensees.
The first section recreates a provision to require a listing broker to include the statutory disclosure requirements and clarify when a disclosure form is required by splitting the section into four parts: (1) a disclosure form is required for a listing broker when the negotiations are conducted directly with the buyer; (2) a broker is required to provide a disclosure form if negotiations are conducted directly with the seller; (3) a subagent is required to provide a disclosure form to a customer with whom they are working, but not to the principle broker; and (3) a broker does not need to require a broker disclosure form to their subagent's customer.
The second section recreates a provision to include the statutory disclosure requirements and clarify license requirements when negotiating terms of a lease and entering into listings for lease or property management contracts.
SECTION 22 amends a provision to expand the licensee's ethical requirements by forbidding them to mislead in three additional areas: "rented, purchased, or optioned" real estate. It also expands "listing contract" to an "agency agreement," an amended definition of which is included in the proposed rules.
SECTION 23 amends five provisions. The first four are amended to include "written proposals" in lieu of "offers." "Written proposal" is defined in the proposed amendments. In addition to the "written proposals" proposed amendments, the terminology in these five sections was amended for clarification.
The first section changes the terminology to "other party," so a written proposal should not be used if it would be contrary to instructions of the other party. The second section changes the terminology so the licensee should promptly present written proposals to the licensee's client or customer. The third section changes the terminology so that the objective and unbiased manner of presentation should be to the licensee's clients and customers. The fourth section broadens the terminology of "buyer" to "clients and customers" and "written proposal" to that a licensee must inform their clients and customers after any action on a written proposal. The fifth section is amended to add "lease or negotiate." This requirement means a licensee must negotiate with the broker who has an exclusive right to sell, lease or negotiate in these areas. Finally, the Note at the end of this section is updated to reflect the correct form, WB-36.
SECTION 24 amends a provision to allow rules of the department to be "readily available" instead of maintained on file, expanding the way in which rules can be maintained.
SECTION 25 amends a provision requiring a licensee to report offenses. The requirements remove an exemption for certain motor vehicle offenses, and require a licensee to send information about their crime to the department within 48 hours.
SECTION 26 creates a provision requiring the licensees to respond to departmental requests for information within 30 days to encourage compliance with requests.
SECTION 27 amends a provision relating to the educational programs for applicants for licenses. The number of hours a program would be if it were in a classroom was amended from a minimum of 36 hours to a minimum of 72 hours. The second section updates a reference to a rule.
Summary of, and comparison with, existing or proposed federal regulation
None.
Comparison with rules in adjacent states
Illinois:
Broker Pre-License Education:
Section 1450.60 Educational Requirements to Obtain a Broker's or Salesperson's License: 120 credit hours of instruction in approved courses or a baccalaureate degree including courses involving real estate or related material are required for broker applicants.
http://www.ilga.gov/commission/jcar/admincode/068/068014500/C00600R.html
Iowa:
Broker Pre-License Education:
54315(8) and 193E-sub rule 16.3(1), an applicant for licensure as a real estate broker shall complete at least 72 classroom hours of commission-approved real estate education within 24 months prior to taking the broker examination. This education shall be in addition to the required salesperson pre-license course (60 hours).
http://www.legis.state.ia.us/ACO/IAChtml/193e.htm#rule_193e_4_1
Michigan:
Conduct and Ethical Practice for Real Estate Licensees:
The various regulations of professional practice and conduct are found in Administrative Rules for Real Estate Brokers and Salespersons, Occupational Code, Article 25, Parts 3 and 4.
http://www.michigan.gov/documents/dleg/rebook_217577_7.pdf
Broker Pre-License Education:
Rule 203. (1) An applicant for a broker or associate broker license shall have completed 90 clock hours of qualifying pre-licensure education of which 9 clock hours shall be on civil rights law and fair housing law, as defined in section 2504(1) of the code. The broker pre-licensure education shall be completed not more than 36 months before the date of application, unless the applicant has held a license as a salesperson for that intervening period.
http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Admin_Num=33922101&Dpt=LG&RngHigh
=
Minnesota:
Broker Pre-License Education:
82.29 Sub.8(b) An applicant for a broker's license must successfully complete a course of study in the real estate field consisting of 30 hours of instruction approved by the commissioner, of which three hours shall consist of training in state and federal fair housing laws, regulations, and rules. The course must have been completed within 12 months prior to the date of application for the broker's license.
https://www.revisor.leg.state.mn.us/statutes/?id=82.29
Summary of factual data and analytical methodologies
The information received from the states listed in this analysis was obtained directly from a review of the applicable regulations and rules.
Analysis and supporting documents used to determine effect on small business
Data was obtained from the department's credentialing division regarding the number of licensees that would be affected by this regulatory change. As of June 15, 2010, there are 47,823 licensed real estate salespersons and 52,465 licensed real estate brokers. There are 8,539 licensed real estate business entities. The majority of real estate licensees work in small business environments; however, the change in rules regarding professional conduct of licensees will not have a significant impact on their cost of doing business. The rule change seeks to clarify current ethical practices that already exist within the Wisconsin real estate industry.
Section
227.137
, Stats., requires an "agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an "agency" in this section.
Anticipated costs incurred by private sector
The department finds that this rule has no significant fiscal effect on the private sector.
Effect on Small Business
These proposed rules were reviewed by the department's Small Business Review Advisory Committee and it was determined that the proposed rules will not have a significant economic impact on a substantial number of small businesses, as defined in s.
227.114 (1)
, Stats.
The Department's Regulatory Review Coordinator, John Murray, may be contacted by email at
John.Murray@Wisconsin.gov
, or by calling (608) 266-2112.
Fiscal Estimate
The department estimates that this rule will have costs of $128 to create forms and update the department's website.
Agency Contact Person
Kris Anderson
Department of Regulation and Licensing
Division of Board Services
1400 East Washington Avenue, Room 116
P.O. Box 8935, Madison, WI 53708
Phone: 608-261-2385
