CR_11-031 Hearing on proposed rules under Chapters Comm 81 to 84 relating to the design, installation or construction, inspection and maintenance of private onsite wastewater treatment systems (POWTS).

Wisconsin Administrative Register No. 666, 6/14/2011

Rule-Making Notices

Notice of Hearing

Commerce

Plumbing, Chs. Comm 81-87

CR 11-031

NOTICE IS HEREBY GIVEN that pursuant to sections 101.02 and 145.02 , Stats., the Department of Commerce will hold a public hearing on proposed rules under Chapters Comm 81 to 84 relating to the design, installation or construction, inspection and maintenance of private onsite wastewater treatment systems (POWTS).

Hearing Information

The public hearing will be held as follows:

Date and Time   Location

June 27, 2011   Thompson Commerce Building
Monday     Third Floor Conference Room #3B
at 10:30 A.M.   201 W. Washington Avenue
    Madison, WI 53703

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

Appearances at the Hearing and Submittal of Written Comments

Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until July 11, 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 Roman Kaminski, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or email at [e-mail] .

Copies of Proposed Rule

The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division website at www.commerce.wi.gov/SB/ . Paper copies may be obtained without cost from Norma McReynolds, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or email at [e-mail] , or at telephone [phone] or [phone] (TTY). Copies will also be available at the public hearing.

Analysis Prepared by the Department of Commerce

Statute(s) interpreted

Sections 101.02 (1) , 145.02 (3) and (4) , 145.12 (5) (a) and 145.20 , Stats., as affected by 2009 Wisconsin Act 392 .

Statutory authority

Chapters 101 and 145 , Stats., as affected by 2009 Wisconsin Act 392 .

Explanation of agency authority

Under the statutes cited, the Department of Commerce has the responsibility to protect public health, safety, and welfare in the design and construction of public buildings, places of employment and one- and 2-family dwellings and their components. Section 145.02 , Stats., specifically grants the department general authority to protect public health, safety and welfare by establishing reasonable and effective standards for Private Onsite Wastewater Treatment Systems (POWTS). Section 145.20 , Stats., delineates the responsibilities and duties of governmental units administering and enforcing the laws and rules pertaining to POWTS. In addition, 2009 Wisconsin Act 392 specifically directs the department to address the inventory and maintenance of private sewage systems.

Related statute or rule

None.

Summary of proposed rules

The proposed rules establish the requirements for the inventory and maintenance of POWTS as reflected in the statutory mandates of 2009 Wisconsin Act 392 . The rules require the following:

  Governmental units shall conduct, complete and maintain an inventory of all POWTS located in their jurisdiction by October 1, 2013.

  Governmental units shall develop and implement a POWTS maintenance program by October 1, 2015.

In addition, the proposed rules include technical revisions to address code inconsistencies and new technologies.

Summary of, and comparison with, existing or proposed federal regulations

An Internet-based search of the Code of Federal Regulations (CFR) and the Federal Register found two existing federal regulations that address some aspects of private sewage systems:

1.   40 CFR 144.80 (e) – Under federal regulations, private sewage systems are classified as Class V Wells, Shallow Injection Wells. Specifically, 40 CFR 144.3 , defines "Sanitary Waste" as including domestic wastewater. Chapter Comm 83 addresses treatment and dispersal of domestic wastewater. Also, 40 CFR 144.3 , defines "Wells or Injection Wells" as including certain septic systems. Class V regulations specifically address "Large Capacity Septic Systems" which are defined as systems receiving sanitary wastes from multiple dwellings or from non-residential establishments where the system has a capacity to serve 20 or more person per day. These systems are "authorized by rule" provided they meet two minimum federal requirements: a) The owner or operator submits basic inventory information, and b) the injectate (wastewater) cannot endanger underground sources of drinking water. Chapter Comm 83 , Wis. Adm. Code, addresses Private Onsite Wastewater Treatment Systems (POWTS) which include septic systems that serve all structures residential and non-residential regardless of capacity. Owner information is required as part of the permitting process. Section 145.13 , Wis. Stats., requires that chapter Comm 83, Wis. Adm. Code, comply with the provisions of chapter 160, Wis. Stats. Chapter NR 140 , Wis. Adm. Code, contains a list of substances that have preventative action limits and enforcement standards. This list is more specific than the current federal regulations. Chapter Comm 83 , Wis. Adm. Code, incorporates the applicable provisions of chapter 160, Wis. Stats., and chapter NR 140, Wis. Adm. Code.

2.   40 CFR Part 122 – Under federal regulations, large private sewage systems require National Pollutant Discharge Elimination System (NPDES) permits which currently are administered by the Department of Natural Resources under its Wisconsin Pollutant Discharge Elimination System (WPDES) program. The WPDES permit process is modeled after the NPDES permit process.

There are no proposed federal regulations that address the inventory and maintenance of POWTS as mandated by 2009 Wisconsin Act 392 or the other matters being clarified under this proposed rulemaking project.

Comparison with similar rules in adjacent states

An Internet-based search for private sewage system regulations in the states of Illinois, Iowa, Michigan and Minnesota found the following:

•   Illinois administrative code, Title 77: Public Health, Chapter I: Department of Public Health, Subchapter r: Water and Sewage, Part 905 Private Sewage Disposal Code regulates all private sewage disposal systems. The Division of Environmental Health's Environmental Engineering Section reviews and approves plans for private sewage disposal systems before construction. There are about 90 local health departments in Illinois that review sewage disposal system construction plans, either by authority of a local ordinance or as an "agent" of the department. In addition, the division licenses about 2,500 individuals to either install or pump out private sewage disposal systems.

•   Iowa's Environmental Protection Commission regulates private sewage disposal systems. Requirements relating to the design, location, installation, use and maintenance of installation private sewage systems can be found in Chapters 64 and 69 of the Iowa Administrative Code. In March 2009, the commission amended Chapter 64 , "Wastewater Construction and Operation Permits," and adopted a new Chapter 69 , "Private Sewage Disposal Systems." Provisions were added for tank abandonment, grease interceptors and permits by rule. A new rule was added pertaining to inspection of septic systems at the time of transfer of property. Other new provisions include requiring a final inspection on a new system installation and requiring counties to enter basic information about that system into the state onsite wastewater database system.

•   Michigan does not have a statewide onsite sewage system code. The Michigan Department of Environmental Quality under the authority of Part 22 Groundwater Quality Rules established the 1994 version of "The Michigan Criteria for Subsurface Sewage Disposal." These criteria are used by the Michigan Department of Environmental Quality and by 44 local health departments that develop their own rules to regulate single- and two-family systems.

•   Minnesota statute, Chapter 115 relating to water pollution control and sanitary districts, establishes rules for "Individual and Alternative Discharging Sewage Treatment Systems." The rules require counties to adopt local ordinances "containing minimum standards and criteria for the design, location, installation, use, maintenance, and closure of subsurface sewage treatment systems."

Summary of factual data and analytical methodologies

In developing the proposed rules, the department reviewed the provisions under 2009 Wisconsin Act 392 in conjunction with the department's broad authority under Chapters 101 and 145 , Stats., to establish building and construction codes that establish minimum standards for the protection of public health, safety and welfare.

The methodology for the proposed revisions of chapters Comm 81 to 84 relating to POWTS, included a review and assessment by staff of code issues that require clarification.

In addition, the review and assessment process involved the participation of the Private Onsite Wastewater Treatment System (POWTS) Advisory Code Council. The members represent the many stakeholders involved in the private sewage system industry including designers, contractors, regulators, academics and manufacturers. The department gathered information and recommendations from the 11-member POWTS Advisory Code Council on the potential impacts of the administrative and technical requirements of the code. (A listing of the POWTS Advisory Code Council is provided at the end of this analysis.)

Effect on Small Business Including Analysis and Supporting Documents Used to Determine Effect on Small Business

The department believes the proposed rules will have a minimal additional impact on small business. The proposed rules implement the mandates imposed by 2009 Wisconsin Act 392 . The Act affects governmental units (counties) and establishes deadlines for the completion of an inventory of private sewage systems within their jurisdictions. The department does not believe the rules will increase the effect on small businesses more than that imposed by the Act.

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

Small business regulatory coordinator

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

Initial regulatory flexibility analysis

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

  The proposed rules will affect any business involved with the ownership, design, construction and installation, inspection, repair and maintenance of private onsite wastewater treatment systems. The proposed rules implement the mandates imposed by 2009 Wisconsin Act 392 . The Act affects governmental units (counties) and establishes deadlines for the completion of an inventory of private sewage systems within their jurisdictions. The department does not believe the rules will increase the effect on small businesses more than that imposed by the Act.

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

  There are no additional reporting, bookkeeping or other procedures required for compliance with the rules.

3.   Types of professional skills necessary for compliance with the rules.

  There are no additional professional skills necessary for compliance with the rules.

4.   Rules have a significant economic impact on small businesses.

  No. Rules not submitted to Small Business Regulatory Review Board.

Environmental Impact

Notice is hereby given that the Department has prepared a preliminary Environmental Assessment (EA) on the proposed rules. The preliminary recommendation is a finding of no significant impact. Copies of the preliminary EA are available from the Department on request and will be available at the public hearings. Requests for the EA and comments on the EA should be directed to:

Division of Department of Commerce

P.O. Box 2689

Madison, WI 53701

Telephone [phone]

or TTY [phone]

Written comments will be accepted until July 11, 2011 .

Fiscal Estimate

State fiscal effect

None.

Local government fiscal effect

No local government costs.

Assumptions used in arriving at fiscal estimate

The Safety and Buildings Division is responsible for administering and enforcing rules relating to the design, installation or construction, inspection and maintenance of private onsite wastewater treatment systems. The proposed rules consist of updates of chapters Comm 81 to 84 relating to private sewage systems.

The proposed rules implement the mandates imposed by 2009 Wisconsin Act 392 . The Act affects governmental units (counties) by setting deadlines for the completion of an inventory of private sewage systems within their jurisdictions. However, Act 392 does not impose any additional responsibilities that would have a fiscal effect.

Anticipated costs incurred by the private sector

The proposed rules will not have a significant effect on the private sector.

Long-range fiscal implications

No long-range fiscal implications are anticipated.

Agency Contact Person

Roman Kaminski, Program Manager, [e-mail] , [phone].

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. NR 1—

CR 11-030

(DNR # WM-02-11)

NOTICE IS HEREBY GIVEN that pursuant to sections 23.09 (2) (b), 29.011, 29.014, 29.063 (3), 29.335, 29.361, and 227.11, Stats, the Department of Natural Resources will hold public hearings on revisions to Chapters NR 10 , 15 , 19 and 45 , Wis. Adm. Code, relating to game and hunting, game refuges and the use of department managed properties.

Hearing Information

Date and Time   Location

June 28, 2011   Natural Resources State Office
Tuesday     Building (GEF-2), Room 608     at 1 P.M.     101 South Webster Street
    Madison, WI 53703

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Scott Loomans at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Submittal of Written Comments and Copies of Proposed Rule

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov . Written comments on the proposed rule may be submitted via U.S. mail to Mr. Scott Loomans, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until June 29, 2011 . Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Mr. Loomans.

Analysis Prepared by the Department of Natural Resources

Statutory authority and explanation of agency authority

Statutes that authorize the promulgation of this rule order include ss. 23.09 (2) (b) , 29.011 , 29.014 , 29.063 (3) , 29.335 , 29.361 , and 227.11 , Stats. These sections grant rule making authority to the department to manage department lands, establish open and closed seasons for hunting and to establish other regulations for hunting and trapping. All rules promulgated under this authority are subject to review under ch. 227 , Stats.

Statute(s) interpreted and explanation

In promulgating this rule, ss. 23.09 (2) (b) , 29.011 , 29.014 , 29.063 (3) , 29.335 , 29.361 and 227.11 , Stats., have been interpreted as providing the department with the authority to make these housekeeping clarifications. Statutes establish trap tagging requirements, which were updated by 2009 Act 38 , and provisions in administrative code are no longer needed.

Plain language analysis

The intent of these rule changes is to correct drafting errors, provide clarification to existing rules, simplify regulations, and update administrative code language and references. Policy issues affected by this rule are ones which have already been addressed by previous rulemaking. The proposed rules will:

1. Clarify that the definitions of "animal part or animal byproduct" and "carcass" apply to bear baiting regulations as well as to deer baiting and feeding. These sections also clarify that eggs are not legal to use as bear bait and milk is, consistent with current interpretation. Lastly, this proposal clarifies that the term carcass includes domestic as well as wild animal carcasses.

2. Relax the deer registration requirement in the CWD management zone so that it is consistent with the registration requirements for archery hunters in the rest of the state.

3. Eliminate the April 10 elk permit application deadline in order to allow more time for people to submit applications. A new deadline will not be established by rule.

4. Allow the use of no. 8 gauge shotguns for waterfowl hunting as long as the gun is modified so that the chamber cannot hold cartridges larger than no. 10 gauge and no larger cartridges are possessed.

5. Repeal trap tagging information that is unnecessary because there is a specific statutory requirement and because 2009 ACT 38 allowed use of a department issued customer identification number instead of name and address information.

6. Correct the location information of Vernon Marsh Wildlife Management area in Waukesha County to include acreage in an additional township.

7. Clarify that the prohibition on the placement of personal property on department lands also applies to items left out to mark or "reserve" trap locations if the season is not open.

Related statute or rule

There are no state rules or statutes currently under promulgation that directly relate to the provisions that are proposed in this administrative order.

Comparison with similar rules in adjacent states

These rule change proposals do not represent significant policy changes and do not differ significantly from surrounding states. All surrounding states have regulations and rules in place for the management and recreational use of wild game and furbearer species that are established based on needs that are unique to that state's resources and public desires.

Federal regulatory analysis

These state rules and statutes do not relieve individuals from the restrictions, requirements and conditions of federal statutes and regulations. Regulating the hunting and trapping of native species has been delegated to state fish and wildlife agencies. Additionally, none of the proposed rules exceed the authorities granted to states in 50 CFR part 10 .

Summary of factual data and analytical methodologies

This rule order is necessary to correct inconsistencies created through the promulgation of other rules and statutes, update code language, correct previous drafting errors, and to clarify existing administrative code language. The rule changes included in this order do not deviate from current department policy on the management of wildlife and the regulation of hunting and trapping.

Effect on Small Business

Pursuant to s. 227.114 , Stats., it is not anticipated that the proposed rules will have a significant economic impact on small businesses.

Small business regulatory coordinator

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

Environmental Impact

The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150 , Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.

Fiscal Estimate

State fiscal effect

Increase costs-may be possible to absorb within agency's budget.

Local government fiscal effect

No local government costs.

Fund sources affected

SEG.

Assumptions used in arriving at fiscal estimate

Annually the department updates administrative code language to correct inconsistencies, update outdated language and provide clarification where appropriate. The department anticipates no fiscal impact. This year, the department is proposing changes that would:

•   Clarify that the definitions of "animal part or animal byproduct" and "carcass" are general definitions not limited to deer baiting regulations.

•   Relax deer registration requirements in the CWD management zone.

•   Eliminate the April 10 elk permit application deadline in order to allow more time for people to submit applications.

•   Allow the use of no. 8 gauge shotguns for waterfowl hunting when the gun is modified for no. 10 gauge cartridges.

•   Repeal a trap tagging requirement that is unnecessary because there is a specific statutory requirement.

•   Correct the location information of Vernon Marsh Wildlife Management area in Waukesha County.

•   Clarify that volunteer wildlife rehabilitators are subject to the same restrictions as basic license holders.

•   Clarify that the prohibition on the placement of personal property on department lands also applies to items left out to mark or "reserve" trap locations if the season is not open.

Long-range fiscal implications

No long range fiscal implications are anticipated.

Anticipated costs incurred by the private sector

These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector. Additionally, no significant costs are associated with compliance to these rules.

Agency Contact Person

Scott Loomans, 101 South Webster St., P.O. BOX 7921, Madison, WI 53707-7921. [phone], [e-mail] .

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. NR 1—

CR 11-032

(DNR # WM-11-11)

NOTICE IS HEREBY GIVEN that pursuant to sections 29.014 , 29.041 and 227.11 (2) (a) , Stats., the Department of Natural Resources will hold public hearings on revisions to Chapter NR 10 , Wis. Adm. Code, relating to the 2011 migratory game bird seasons and waterfowl hunting zones. Season dates and bag limits will be set for ducks and Canada geese. Under international treaty and federal law, migratory game bird seasons are closed unless opened annually via the U.S. Fish and Wildlife Service regulatory process. Because of the timing of Wisconsin's rule process and the U.S. Fish and Wildlife Service rule process, the actual season lengths, dates and bag limits cannot be determined at this time for much of the rule.

NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under Chapter NR 150 , Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.

Hearing Information

NOTICE IS HEREBY FURTHER GIVEN that the hearings will begin at 7:00 p.m . at each of the following locations:

Date and Time   Location

August 1, 2011   State Office Building
Monday     Rooms B-19 and B-20     at 7 P.M.     3550 Mormon Coulee Road
    La Crosse, WI 54601

August 2, 2011   Spooner Agricultural Research Station
Tuesday     W6646 Hwy. 70     at 7 P.M.     Spooner, WI 54801

August 3, 2011   Agricultural Services Center
Wednesday   Main Conference Room
at 7 P.M.     3369 West Brewster Street
    Appleton, WI 54914

August 4, 2011   Comfort Suites Lake Country
Thursday   Thunder Bay Room
at 7 P.M.     N14 W24121 Tower Place
    Pewaukee, WI 53072

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Scott Loomans at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Proposed Rule and Submittal of Written Comments

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov .

Written comments on the proposed rule may be submitted via U.S. mail to Mr. Kent Van Horn, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707 or by email to [e-mail] . Comments may be submitted until August 4, 2011 . Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Mr. Van Horn.

Analysis Prepared by the Department of Natural Resources

Plain language analysis

T his rule order establishes the season length and bag limits for the 2011 Wisconsin migratory game bird seasons. For ducks, the state is divided into two zones each with 60-day seasons. The season begins at 9:00 a.m. September 24 and continues for 60 consecutive days in the north, closing on November 22. In the South the season begins at 9:00 a.m. on October 1 and continues through October 9, followed by a 5-day split, and then reopens on October 15 and continues through December 4. The daily bag limit is 6 ducks including no more than: 4 mallards, of which only 1 may be a hen, 1 black duck, 1 canvasback, 3 wood ducks, 2 scaup, 2 pintails and 2 redheads.

For Canada geese, the state is apportioned into 2 goose hunting zones, Horicon and Exterior. Other special goose management subzones within the Exterior Zone include Brown County and the Mississippi River. Season lengths are: Horicon Zone - 92 days (2 hunting periods, first period beginning September 16 and the second on October 31); Exterior Zone in the northern duck zone - 85 days (Sept. 17 – Dec. 10); Exterior Zone in the southern duck zone – 85 days (Sept. 17 – Oct. 9 and Oct. 15 – Dec. 15) and Mississippi River subzone - 85 days (Oct. 1 – Oct. 9 and Oct. 15 – Dec. 29). The statewide daily bag limit for Canada geese in all zones is 2 birds per day during the open seasons within the zones.

This rule establishes that the youth waterfowl hunting season will be held on September 17 and 18.

This proposal may establish a new duck hunting zone configuration. At the time of submittal of this hearing notice to the Legislative Reference Bureau, the USFWS had not determined if they can give our state the option of reconfiguring duck hunting zones because they are engaged in a concurrent rule making process. If the USFWS does not grant Wisconsin's request to change duck hunting zones, the department will not propose a Section 3 in this board order when we request adoption and will not take public input on Section 3 at public hearings.

If the USFWS does grant Wisconsin's request to change duck hunting zone configurations, the department will request public input at hearings on three new alternatives. Under all three alternatives, the Northern Zone duck hunting season would not change from the dates listed in this proposal. The Canada goose hunting season would be modified so that it is also closed during the closed period in duck zones that have split seasons.

The first alternative the department will take comments on is to create a new, third duck hunting zone that consists of Mississippi River areas west of the Burlington Northern Railroad tracks. Under this scenario, the season dates in this zone would include a split when hunting is not allowed that is four days longer than the current five day split. The duck season dates would be October 1 to 9, reopening on October 19 and continuing through December 8 for a 60 day season.

The second alternative is to create a new, third duck hunting zone that consists of the Lake Michigan areas east of a line beginning 500 feet from shore, not including Green Bay. Under this scenario, the season dates in this zone would not include a split or closed period. The season would begin on October 15 and continue through December 13 for a 60 day season.

A third alternative is to create two new zones, one that consists of Lake Michigan and one that consists of the Mississippi River as described above. Under this scenario, the USFWS proposes to only allow continuous straight seasons with no opportunities for splits or closed periods during the season. Under this scenario the 60 day season in the Mississippi River zone would open on October 8 and continue through December 6. In Lake Michigan, it would open on October 15 and close on December 13. In the South Zone, it would open on October 1 and continue through November 29.

A fourth alternative that the department will request input on is the existing zones and season dates.

Summary of, and comparison with, existing or proposed federal regulations

Under international treaty and Federal law, migratory game bird seasons are closed unless opened annually via the U.S. Fish and Wildlife Service (USFWS) regulations process. As part of the Federal rule process, the USFWS proposes a duck harvest-management objective that balances hunting opportunities with the desire to achieve waterfowl population goals identified in the North American Waterfowl Management Plan (NAWMP). Under this harvest-management objective, the relative importance of hunting opportunity increases as duck populations approach the goals in the NAWMP. Thus, hunting opportunity would be maximized when the population is at or above goals. Additionally, while USFWS believes that the NAWMP's population goals would tend to exert a conservative influence on overall duck harvest-management. Other factors, such as habitat, are to be considered.

In the past, the regular Canada goose season was based on the allowable Mississippi Valley Population (MVP) harvest which was determined based on the spring breeding population estimate obtained from an aerial survey of the MVP breeding range as prescribed by the Mississippi Flyway MVP management plan. However, because locally produced giant Canada geese now constitute a considerable portion of the harvest in all states that also harvest Mississippi Valley Population birds, the Mississippi Flyway Council is testing the use of a standard season framework for 5 years. Beginning in the fall of 2007 and continuing through 2011, season lengths and bag limits for each MVP harvest state have remained unchanged. Each state retains the flexibility to schedule the timing of their Canada goose season. In addition, if the MVP spring population numbers dropped to a predetermined low level during the 5-year period, the stable season framework would be adjusted.

At the time of submittal of this rule and hearing notice to the Legislative Council Clearinghouse and to the Reference Bureau, the USFWS had not determined if they can give our state the option of reconfiguring duck hunting zones because they are engaged in a concurrent rule making process to revise 50 CFR 20 . If the USFWS does not modify their rules allowing Wisconsin to change duck hunting zones, the department will not propose a Section 3 in this board order when we request adoption and will not take public input on Section 3 alternatives at public hearings.

Except as described above, proposed modifications included in this rule order are consistent with these parameters and guidelines which are annually established by the USFWS in 50 CFR 20 .

Comparison with similar rules in adjacent states

Since migratory bird species are managed under international treaty, each region of the country is organized in a specific geographic flyway which represents an individual migratory population of migratory game birds. Wisconsin along with Minnesota, Michigan, Illinois and Iowa are members of the Mississippi Flyway. Each year the states included in the flyways meet to discuss regulations and guidelines offered to the flyways by the USFWS. The FWS regulations and guidelines apply to all states within the Flyway and therefore the regulations in the adjoining states closely resemble the rules established in this rule order, and only differ slightly based on hunter desires, habitat and population management goals. However, these variations fall within guidelines and sideboards established by the USFWS.

Summary of factual data and analytical methodologies

For the regular duck season, a data based process called Adaptive Harvest Management is used annually by the USFWS and the Flyways to determine which of 3 framework alternatives best matches the current year's data on populations and habitat (data from the spring pond and duck survey). The option of a closed season is also possible if survey conditions indicated that this is necessary for the management of duck populations. The determination of which alternative is selected is based in part on the spring wetland conditions on the breeding grounds and the Mid-Continent Mallard population. These data come from the May Pond and Breeding Waterfowl Population Surveys conducted by the USFWS and Canadian Wildlife Service on traditional survey areas as well as surveys from select states, including Wisconsin.

In addition to the annual waterfowl hunting regulation process described below, 2011 is the open window to change state duck hunting zones as allowed by the USFWS every 5 years. Since 1991, the USFWS has regulated how states can arrange duck hunting zones and season splits. A season split is a temporary closure of the hunting season in order to extend the hunting later in the duck season. The USFWS has allowed 3 configurations of duck zones and splits; 1)One statewide zone with the annual option to have 2 season splits, 2)Two zones with the annual option for 1 season split in each zone, 3)Three zones without the option for a split. Each zone can have a unique size or shape but must be contiguous and the boundaries clear.

Wisconsin has always selected the 2 zone with split option to provide a north and south duck hunting zone. Over the years, we have moved our zone line but always maintained a general north and south separation recognizing the differences in weather and hunting opportunities. While we have worked with the USFWS restrictions on duck hunting zones it has been our consistent position that the configuration of duck zones is an issue of hunter opportunity and satisfaction which does not have significant impact on duck populations, therefore, states should be allowed to manage zones without federal regulation. We have provided comment to the USFWS with this position over the years but the USFWS has maintained control over state duck hunting zones. In August, 2010 the USFWS announced their intent to offer 2 additional duck hunting zone options; 3 zones with splits and 4 zones without splits. Unfortunately, the federal implementation of these new opportunities has moved slower than planned and there is still uncertainty whether it will be implemented in 2011 or delayed. Potential configurations are described in Section 3 of the rule order. If one of these new options is selected it is likely that the season structure for the north and south zones will experience only minor changes from that in this proposed rule order while 1-2 new season structures will be offered in the new zones.

Wisconsin's regular Canada goose season harvest consists of close to a 50:50 ratio between resident giant and MVP population Canada geese. As a result, the parameters of Wisconsin's regular goose seasons are guided by the Mississippi Flyway management plans for the MVP and giant Canada goose populations and approved by the Mississippi Flyway Council and the USFWS. The health of these populations was measured with spring breeding population surveys, survival data and harvest rates obtained from banding and production studies. The surveys and studies are conducted annually and are supported by the State of Wisconsin as part of the MFC. The result of this work is reviewed annually by the MFC committee and the USFWS to measure the impact of the stable season framework trial period.

The primary elements of Wisconsin's waterfowl regulatory process include conducting spring waterfowl surveys, participation in MFC meetings, commenting on federal proposals, and soliciting input from the public. The state process begins with Flyway meetings in February and March each year where staff provide input to the development of federal framework alternatives and requests related to the early seasons. In spring and summer, breeding waterfowl surveys and banding are conducted in support of the regulatory process.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector or small businesses. Additionally, no significant costs are associated with compliance to these rules.

Effect on Small Business

These rules are applicable to individual sportspersons and impose no compliance or reporting requirements for small businesses, nor are any design or operational standards contained in the rule.

Pursuant to s. 227.114 , Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses.

Small business regulatory coordinator

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

Environmental Impact

The Department has made a determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150 , Wis. Adm. Code.

Fiscal Estimate

State fiscal effect

No state fiscal effect.

Local government fiscal effect

No local government fiscal effect.

Long-range fiscal implications

None.

Anticipated costs incurred by the private sector

None.

Summary

Because this proposal does not differ significantly from the season frameworks available in previous years, there are no new expenditures, record keeping requirements, or processes created.

Agency Contact Person

Scott Loomans, Bureau of Wildlife Management, [phone], [e-mail] .

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. NR 1—

EmR1107

(DNR # FH-10-11(E))

NOTICE IS HEREBY GIVEN THAT pursuant to sections 29.014 (1), 29.041, 29.519 (1m) (b), and 227.11 Wis. Stats., the Department of Natural Resources will hold public hearings on an emergency rule to revise Chapter NR 25 , Wis. Adm. Code, relating to the use and marking of commercial fishing trap nets in Lake Michigan and Lake Superior.

Hearing Information

NOTICE IS HEREBY FURTHER GIVEN that the hearing will be held on:

Date and Time   Location

June 27, 2011   Lake Michigan Room
Monday     Lakeshore Technical College
at 5 to 7 P.M.   2190 North Avenue
    Cleveland, WI 53015

Date and Time   Location

June 27, 2011   DNR Field Station
Monday     141 South 3 rd Street
at 5 to 7 P.M.   Bayfield, WI 54814
(conference call held concurrently with hearing in Cleveland)

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of information material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call William Horns at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Submittal of Written Comments

The emergency rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov . If you do not have Internet access, a personal copy of the proposed rule and supporting documents, including the fiscal estimate, may also be obtained from William Horns, Bureau of Fisheries Management, P.O. Box 7921, Madison, WI 53707 or by e-mail to [e-mail] .

Written comments on the proposed rule may be submitted via U.S. mail to William Horns. Comments may be submitted until June 23, 2011 . Written comments, whether submitted electronically or by U.S. mail, will have the same weight and effect as oral statements presented at the public hearings.

Analysis Prepared by the Department of Natural Resources

Plain language analysis

SECTION 1. of the Order prohibits persons from trolling with downriggers on the Great Lakes without direct and immediate access to a wire cutter or other device capable of severing any line pulled behind the boat.

SECTION 2. of the Order establishes net-marking requirements for Lake Superior that are identical to the net-marking requirements for Lake Michigan.

SECTION 3. of the Order specifies that from June 29 to Labor Day south of a line extending from the Lake Michigan shoreline along 44º52'30" north latitude all parts of trap nets must be in water 150 feet or shallower and 60 feet or deeper.

SECTION 4. of the Order revises net-marking requirements for Lake Michigan by requiring that staffs be marked with reflective tape.

Summary of, and comparison with, existing or proposed federal regulation

The department is not aware of any existing or proposed federal regulation that would govern commercial fishing in Wisconsin's waters of Lake Michigan and Green Bay or Lake Superior.

Comparison with similar rules in adjacent states

Trap nets are not used in Illinois or Minnesota waters of the Great Lakes, and of course Iowa has no Great Lakes waters.

The State of Michigan has uniform trap net-marking requirements for all of its Great Lakes Waters (parts of Lakes Superior, Michigan, Huron, and Erie). Those net-marking requirements are similar but not identical to those proposed here for Wisconsin waters of Lakes Michigan and Superior.

The Michigan Department of Natural Resources and Environment has the authority to limit trap netting by individual license holders if and when conflicts arise. Pursuant to that authority the MDNRE prohibits trap nets during June, July, and August in one area near Tawas on Lake Huron.

Summary of factual data and analytical methodologies

SECTION 1 and 3 of the rule reflect an effort by the department to take steps to minimize the risk of conflicts between sport trollers and commercial trap nets. SECTION 2 and SECTION 4 modify net-marking requirements for Lake Superior and Lake Michigan. Those changes reflect the judgment of Fisheries and Law Enforcement staff following examination of Great Lakes accident data, discussions with appropriate sport and commercial advisory groups, and internal discussions. The rule was amended in response to public comment.

Analysis and supporting documentation that the agency used in determination of the rule's effect on small businesses

We know that small businesses engaged in commercial fishing and wholesale fish dealing may be affected by the rule. We currently have no basis for quantifying the economic impacts of the rule. However, in testimony at public hearings on the rule, Lake Michigan commercial fishers indicated that the time and area restrictions set out in the original version of the rule might have an impact on their catch, and thus have a negative economic impact. These and other comments are reflected in the changes made to the rule.

Effect on Small Business, Including How the Rule Will Be Enforced

This rule is of interest to commercial fishers and was initiated in response to the expressed concerns of recreational fishers. The impact on commercial fishers is discussed above.

The rule will be enforced by department Conservation Wardens under the authority of chapters 23 and 29, Stats., through routine patrols, record audits of wholesale fish dealers and commercial fishers and follow up investigations of citizen complaints.

Pursuant to s. 227.114 , Stats., it is not anticipated that the rule will have a significant economic impact on small businesses. Small businesses engaged in commercial fishing and wholesale fish dealing may be affected by the rule. However, the Department currently has no basis for quantifying the economic impacts of the rule.

Small business regulatory coordinator

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

Environmental Impact

The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150 , Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.

Fiscal Estimate

State fiscal effect

No state fiscal effect.

Local government fiscal effect

No local government costs.

Agency Contact Person

William Horns

Department of Natural Resources

P.O. Box 7921

Madison, WI 53707-7921

Telephone: [phone]

E-mail: [e-mail]

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. NR 1—

EmR1109

(DNR # WM-15-11(E))

NOTICE IS HEREBY GIVEN that pursuant to sections 29.014 , 29.177 , 227.11 and 227.24 Stats., interpreting sections 29.014 , 29.177 , and 227.11 , Stats., the Department of Natural Resources will hold public hearings on an emergency rule to revise Chapter NR 10 Wis. Adm. Code relating to deer hunting seasons and carcass tag use. The State Natural Resources Board adopted this emergency rule on April 27, 2011 in order to be able to implement the rule for the 2011 seasons.

Hearing Information

Date and Time   Location

June 28, 2011   Natural Resources State Office
Tuesday     Building (GEF-2), Room G09   at 2 P.M.     101 South Webster Street
    Madison, WI 53703

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Scott Loomans at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Submittal of Written Comments and Copies of Proposed Rule

The proposed rule and fiscal estimate may be reviewed at the following Internet site: http://adminrules.wisconsin.gov . A personal copy of the proposed rule and fiscal estimate may be obtained from Scott Loomans by email or U.S. mail. Written comments on the proposed rule may be submitted by email to [e-mail] or via U.S. mail to Mr. Scott Loomans, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until June 29, 2011. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings.

Analysis Prepared by the Department of Natural Resources

Plain language analysis

The department recommends promulgating administrative rules that modify ch. NR 10 related to the use and issuance of deer tags.

Section 1 allows the department to, upon order of the secretary, distribute antlerless deer permits for the cost of issuance in designated herd control units without holding a four-day, October antlerless firearm hunt in the same units.

Sections 2 through 4 establish that the department's existing earn-a-buck regulations for deer hunters in a CWD Management Zone do not apply to use of the archery and gun buck deer carcass tags that are issued with each archery and firearm deer hunting license.

Related statute or rule

There are no state statutes currently under promulgation that directly relate to the provisions that are proposed in this administrative order.

Federal regulatory analysis

These state rules and statutes do not relieve individuals from the restrictions, requirements and conditions of federal statutes and regulations. Regulating the hunting and trapping of native species has been delegated to state fish and wildlife agencies.

Comparison with similar rules in adjacent states

These rule change proposals do not represent significant policy changes and do not differ significantly from surrounding states. All surrounding states have regulations and rules in place for the management and recreational use of game species that are established based on needs that are unique to that state's resources and public desires.

Illinois:

The 2011 Illinois archery season in most of the state will run from October 1 - January 15 except that it is closed during the firearm deer season in some areas. Illinois has two periods for firearm deer hunting. The first firearm season in 2011 will be November 18 - 20, and the second season is December 1 - 4. The Illinois muzzleloader only season will be December 9 – 11 in 2011. Illinois will hold a youth firearm deer season on October 8 and 9. Hunters may purchase any number of antlerless permits subject to availability in county quotas but are limited to purchasing only one prior to the beginning of random daily drawings in September .

Iowa:

In 2010 Iowa had two archery hunting periods, the first October 1 - Dec. 3 and the second December 20 - January 10, 2011. Iowa also has two periods for firearm hunting, December 4 – 8 and December 11 – 19. Iowa's two muzzleloader only hunting periods are October 16 – 24 and December 20 - January 10. Iowa also held a deer season for youth and disabled hunters from September 18 to October 3. Iowa residents may purchase multiple antlerless tags subject only to the availability in a unit, but are limited to purchasing only 1 prior to September 15.

Michigan:

Michigan has two archery hunting periods, the first beginning on October 1 and continuing through November 14 and the second running December 1 – January 1. The Michigan firearm season begins on November 15 and continues through November 30. Additionally, Michigan has a 5 day early, private land only, antlerless firearm season beginning on September 16 and a 4 day youth season beginning on September 21. Michigan's muzzleloader-only seasons vary in three zones, all occurring in December and vary from 10 to 17 days in length. Hunters may purchase additional antlerless permits up to a maximum of 5 a year in some units, however additional antlerless harvest opportunity is available in some areas.

Minnesota:

Minnesota's 2010 archery season ran from September 18 to December 31. Minnesota's firearm season begins on November 6 and continues to November 14 or 21 depending on the zone. Additional firearm "B" seasons run from Nov. 20 – 28, Nov. 6 – 28, Oct 23 and 24, or Oct. 21 – 24 in certain areas. The muzzleloader-only season runs from November 27 to December 12. Minnesota hunters are generally limited to harvesting one buck, regardless of the number of seasons or licenses they purchase. The harvest of up to 7 antlerless deer is possible by hunting in different units and zones.

Summary of factual data and analytical methodologies

The harvest of antlerless deer is managed by the department in order to achieve overwinter goals established in s. NR 10.104 Wis. Admin. Code. In management units where the deer population is below goal, the department may restrict antlerless deer harvest or establish an antlerless quota of zero. In management units where the population is above goal, the department will issue a number of antlerless permits that are likely to result in harvest that helps reduce the population to its overwinter goal. Earn-a-buck regulations, which require that a hunter first harvest an antlerless deer before they can harvest a buck, are an additional tool that can be used in some units to encourage even greater harvest of antlerless deer.

In management units where the normal deer hunting season framework is not likely to reduce the population to within 20% of its overwinter goal a number of season framework options have already been established by rule. The first season framework option requires both the issuance of free (except for a $2.00 issuance fee) antlerless deer tags and holding a four day October antlerless only firearm season beginning on the Thursday nearest October 15.

Under this proposal, the department could select either to issue free tags or to hold an October four day firearm season, but is not required to select both.

In the CWD management zone, whenever a management unit's deer population is over its established goal, the department may require that a hunter first harvest an antlerless deer before harvesting a buck. This proposal exempts a hunter from earn-a-buck requirements in filling their archery or gun buck deer carcass tag. This proposal preserves the earn-a-buck regulation as it applies to special, free permits issued in the CWD management zone.

Effect on Small Business

These rules are applicable to individual sportspersons and impose no compliance or reporting requirements for small businesses, and no design or operational standards are contained in the rule.

Pursuant to s. 227.114 , Stats., it is not anticipated that the proposed rules will have a significant economic impact on small businesses.

Small business regulatory coordinator

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

Environmental Impact

The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150 , Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.

Fiscal Estimate

State fiscal effect

None.

Local government fiscal effect

None.

Anticipated costs incurred by the private sector

These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector. Additionally, no significant costs are associated with compliance to these rules.

Assumptions used in arriving at fiscal estimate

The department recommends promulgating administrative rules that modify ch. NR 10 related to deer hunting seasons and the use and issuance of deer tags.

This proposal will, upon an order of the secretary, allow the department to distribute antlerless deer permits for the cost of issuance in designated herd control units without holding a four-day, October antlerless firearm hunt in the same units. Under current rules, if the department issues antlerless permits for only cost of issuance, it must also hold the four day season.

Additionally, the rule establishes that the department may not require that a hunter harvest an antlerless deer before harvesting a buck when using their archery or gun buck deer carcass tag in a CWD management zone. The harvest of additional bucks will continue to first require the harvest of an antlerless deer.

The department already administers the creation and distribution of carcass tags for deer hunting and establishes and publishes hunting season information. No new processes, record keeping, or printing requirements are created as a result of this proposal. Additionally, there are no new requirements of law enforcement as a result of this proposal. The department does not anticipate any fiscal effect from the provisions of this proposal.

Long-range fiscal implications

No long range fiscal implications are anticipated.

Statement of Emergency

The emergency rule procedure, pursuant to s. 227.24 , Stats., is necessary and justified in establishing rules to protect the public welfare. The rule is necessary in order to foster participation by hunters and landowners so they will continue to hunt and cooperate in CWD control and deer herd management. This rule proposal balances pressing social concerns about the quality of the deer hunt with the need for effective herd control measures such as additional antlerless deer harvest in management units that are more than 20% over population goals or simply over population goals in units that are part of the CWD Management Zone. This rule will increase harvest of bucks in the CWD zone which have a higher prevalence of CWD and, because of their greater dispersal distances, have a higher likelihood of spreading CWD. However, the rule retains a herd control tool which requires that antlerless deer be harvested before additional bucks (beyond the initial one) may be taken. The federal government and state legislature have delegated to the appropriate agencies rule-making authority to control and regulate hunting of wild animals. The State of Wisconsin must provide publications describing the regulations for deer hunting to more than 630,000 deer hunters prior to the start of the season. These regulations must be approved prior to printing nearly 1 million copies of the regulations publication.

Agency Contact Person

Scott Loomans, 101 South Webster St., PO BOX 7921, Madison, WI 53707-7921. [phone], [e-mail] .

Notice of Hearing

Regulation and Licensing

CR 11-027

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in sections 15.08 (5) (b) , 227.11 (2) (a) , 440.03 (1) , 448.40 (1) Stats., the Department of Regulation and Licensing will hold a public hearing at the time and place indicated below to consider an order to renumber and amend section RL 4.08 (intro) , and to create section RL 4.08 (2) , relating to background checks and fingerprinting.

Hearing Information

Date and Time   Location

July 20, 2011   1400 East Washington Avenue
Wednesday   Room 121A
at 8 A.M.   Madison, WI 53703

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. Written comments must be received at or before the public hearing to be held on July 20, 2011 , to be included in the record of rule-making proceedings. Comments may be submitted to Shawn L eatherwood, Paralegal, Department of Regulation and Licensing, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email to [e-mail] .

Copies of Proposed Rule

Copies of this proposed rule are available upon request Shawn Leatherwood, 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 Shancethea.Leatherwood@wisconsin
.gov .

Analysis Prepared by the Department of Regulation and Licensing

Statute(s) interpreted

Sections 440.03 (13) (a) , (b) and (c) , and 448.05 (1) (a) , Stats.

Statutory authority

Sections 15.08 (5) (b) , 227.11 (2) (a) , 440.03 (1) , 448.40 (1) , Stats.

Explanation of agency authority

Section 448.05 , Stats., is enforced and administered by the Department of Regulation and Licensing ("DRL") and the Medical Examining Board. Specificall y , s. 448.40 (1) , Stats., authorizes the Medical Examining Board to promulgate rules to carry out the purposes of the Medical Examining Board subchapter. Section 448.05 (1) , Stats., is in the Medical Examining Board subchapter.

Further, the Medical Examining Board is obligated under s. 15.08 (5) (b) , Stats., to promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains, and define and enforce professional conduct and unethical practices not inconsistent with the law relating to the particular trade or profession.

DRL is a department in the state government, and is therefore an "agen c y " under s. 227.01 (1) , Stats. Under s. 227.11(2) (a) , Stats., it may 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. Both ss. 440.03 (13) and 448.05 (1) , Stats., are enforced and administered by DRL.

Last, DRL is authorized under s. 440.03 (1) , Stats., to promulgate rules defining uniform procedures to be used b y the department, the attached boards, the examining boards, and the affiliated credentialing boards.

Related statute or rule

Section 440.03 (7) Stats., and Wis. Admin. Code § RL 4.07 (52) .

Plain language analysis

Subject to ss. 111.321 , 111.322 and 111.355 , Stats., s. 448.05 (1) (a) , Stats., requires that an applicant must not have an arrest or conviction record to be qualified for the grant of any license by the Medical Examining Board. Section 448.03 (13) (a) , Stats., authorizes DRL to conduct investigations to determine whether applicants have arrest or conviction records and require applicants to provide a n y information that is necessary for the investigation. Under s. 448.03 (13) (b) , Stats., DRL may investigate whether applicants to practice medicine and surgery have arrest or conviction records pursuant to rules it promulgates.

DRL promulgated Wis. Admin. Code chs. RL 4.07 and RL 4.08 to interpret s. 448.03 (13) , Stats. Under chs. RL 4.07 and RL 4.08, DRL may require an applicant for ph y sician licensure to submit fingerprints and undergo a criminal background check if "there exists reason to believe that the applicant has failed to accurate l y describe his or her conviction record."

The addition to Section 1 creates a class of licensed credentials the applicants for which may be required to be photographed, submit fingerprints, and undergo criminal background checks in situations when there is not a reason to believe that an applicant has failed to accurate l y describe his or her conviction record.

Section 2 defines the class of licensed credentials created b y the changes to Section 1. Section 2 requires applicants for a p h y sician license to practice medicine and surgery to submit a full set of fingerprints along with their application for licensure. The fingerprints will be used to verify the applicant's identity and conduct searches for criminal arrests and convictions in accordance with s. 440.03 (13) , Stats.

Summary of, and comparison with, existing or proposed federal regulations

The FBI will conduct background checks pursuant to federal law or a state law approved by the U.S. Attorney General under Public Law 92-544 (1972). DRL contacted the Crime I nformation Bureau of the Wisconsin Department of Justice to determine whether s. 440.03 (13) , Stats., is an approved statute to authorize DRL to require background checks of applicants to practice medicine and surger y . On January 7, 2011, Phillip Collins, Deputy Director of the Crime Information Bureau confirmed that that the FBI approves s. 440.03 (13) , Stats., as a statute authorizing DRL to require background checks of applicants to practice medicine and surger y .

Comparison with similar rules in adjacent states

Illinois:

I llinois statute requires applicants for medical licensure to provide fingerprints for a criminal background check. 225 ILCS 60/9.7. The statute further requires the Illinois Department of Professional Regulation to promulgate rules to implement the requirement. Id. However, a review of Illinois' application and online instructions indicates that Illinois current l y does not require applicants to submit fingerprints or undergo background checks.
See http://www.idfpr.com/dpr/WHO/med.asp , accessed on Jan. 3, 2011.

Iowa:

I owa administrative rules require applicants for medical licensure to pay for and provide a full set of fingerprints for state and federal criminal background checks. IAC 653-9.4 (2) p., 9.5 (3) p., 9.6 (2) j. and 8.4 (7). Iowa promulgated the administrative rules based on the federal Volunteers for Children Act, Public L aw 10 5 -251 (1998). The U.S. Attorney General alrea d y approved the Volunteers for Children Act as a basis to enable "qualified entities" to require emplo y ees and volunteers to submit fingerprints for no n - law enforcement criminal background checks.

Michigan:

Michigan statute requires applicants for medical licensure to provide fingerprints for state and federal criminal background checks. MCL 333.16174 (3).

Minnesota:

Minnesota current l y does not require applicants for medical licensure to undergo criminal background checks.

Summary of factual data and analytical methodologies

In February 2010, DRL was awarded an American Recovery and Reinvestment Act grant to lead a group of nine states to reduce barriers to the portability of ph y sician licenses. Since the award, Wisconsin has worked with Illinois, I ndiana, Iowa, Kansas, Michigan, Minnesota, Missouri and South Dakota to develop best practices to improve the licensing process of ph y sicians. In November, the states identified requiring applicants to submit fingerprints and undergo criminal background as a best practice. The requirement conforms to longstanding recommendations b y the Federation of State Medical Boards ("FSMB").

Since April 2001, FSMB has affirmed its position that it is a best practice for state medical boards to "conduct criminal background checks as part of the licensure application process. See Federation of State Medical Boards, Public Policy Compendium , April 2010. The FSMB reaffirmed its position in April 2010. Id.

Further, as of September 2010, 35 out of 68 U.S. medical and osteopathic boards require applicants to submit fingerprints and undergo criminal background checks as part of the application process. FSMB, Criminal Background Checks Overview by State , Last Updated September 6, 2010, at http://www.fsmb.org/pdf/GRPOL_Criminal_Background_Checks.pdf .

Analysis and supporting documents used to determine effect on small business or in preparation of economic report

Section 227.137 , Stats., requires an "agenc y " to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and L icensing is not included as an "agenc y " in this section.

Effect on Small Business

These proposed rules will be reviewed b y the department's Small Business Review Advisory Committee to determine whether the rules will have a n y significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1) , Stats.

Small business regulatory coordinator

The Department's Regulatory Review Coordinator may be contacted by email at john.murra y @wisconsin.gov , or by calling [phone].

Fiscal Estimate

The department estimates that the proposed rule will have no significant fiscal impact.

Anticipated costs incurred by the private sector

Every person seeking initial licensure to practice medicine and surgery in Wisconsin will incur the cost of conducting the criminal background check. The cost to the applicant of conducting a criminal background check is approximately $56.25. The cost is t he price the department charges applicants for the professions that it currently requires undergoing the same criminal background check process.

Agency Contact Person

Shawn Leatherwood, Paralegal

Department of Regulation and Licensing

1400 East Washington Avenue

P.O. Box 8935

Madison, Wisconsin 53708

telephone: [phone]

email: [e-mail]