Scope statements
Natural Resources
Objective of the rule. In April of 2002 the Natural Resources Board adopted NRB Order FH-34-01 changing the seasonal boundaries for commercial chub fishing on Lake Michigan. The provisions of that rule will expire on July 1, 2007. In the next few months the Department will review the issue and would like to consider extending the provisions of the rule beyond the present expiration date.
Policy analysis
Areas open to commercial chub fishing are limited in order to protect lake trout from being caught incidentally in the gill nets used by the commercial fishers. In general, the incidental catch of lake trout during winter and spring decreases as the nets are moved farther from shore. When commercial fishers are required to fish farther from shore, however, their operating costs increase and their yields decrease. NRB Order FH-34-01 was developed in order to address the concerns of commercial fishers while also not increasing the incidental catch of lake trout. By reducing the minimum fishing depth during winter but increasing it during spring, the rule sought to enhance fishing opportunities while actually reducing the total incidental catch of lake trout. With the rule scheduled to expire in 2007, the Department proposes to review the issue and consider recommending an indefinite extension of the provisions of NRB Order FH-34-01.
Statutory authority
Staff time required
One month FTE (combined effort by the Great Lakes Fisheries Specialist, a staff attorney, several field biologists, and wardens).
Entities affected by the rule
The interests of both commercial and sport fishers will be affected. In the past this issue has been controversial at times.
Comparison with federal regulations
None.
Natural Resources
Objective of the rule. To address nuisance algae and aquatic weed problems in lakes and low oxygen stress to fish and other aquatic life streams, the U. S. Environmental Protection Agency (EPA) is requiring all states, including Wisconsin, to adopt nutrient (phosphorus and nitrogen) criteria as part of its water quality standards. EPA's guidance identifies values for principally four “ecoregions" in the state, the northern forested areas, a west to east central zone, the driftless area and the southeastern quarter of the state. It also calls for adoption of “causal" pollutants, phosphorus and nitrogen, and “response" problems, algal biomass and high turbidity. EPA's guidance is based on the lowest 25th percentile of available data for each region, including data from other states. If EPA's approach were used, inevitably 75 percent of the lakes or streams – regardless of the actual conditions in the water -- would be considered as not meeting water quality standards and would need to be placed on the state's 303(d) impaired waters list.
Upon adoption, the criteria will be used to:
develop nutrient water quality based municipal and industrial WPDES permit effluent limits;
identify impaired waters under s. 303(d) of the Clean Water Act;
further identify watersheds where nonpoint source controls, including performance standards and prohibitions, are most needed; and
develop Total Maximum Daily Load (TMDL) allocations.
Policy analysis
EPA provides a number of options to the states. States may adopt nutrient criteria based on:
EPA's guidance values (based on the 25th percentile of available data for multi-state eco-regions);
the 25th percentile of available data for the state;
conditions found in good quality lakes and streams; deemed as “least-impacted" reference conditions in EPA guidance; or
analyses of effects found on the fish and aquatic life in the state's lakes and streams.
Also, states may adopt criteria:
uniformly applicable across the state;
varying by geographic regions determined by the state; or
varying by EPA's ecoregions.
Finally, Department staff anticipates that EPA may accept promulgation on only phosphorus criteria instead of the suite of parameters (phosphorus, nitrogen, algal biomass and turbidity) identified in federal guidance.
If the state chooses to vary from EPA's guidance, the state must justify its approach to EPA. If the state chooses to not adopt nutrient criteria or if EPA finds the state's approach unacceptable, EPA may “over-promulgate" its own criteria (described above) for the state. EPA may “over-promulgate" as soon as 2008.
To date, EPA has not issued nutrient criteria guidance for the Great Lakes and their nearshore waters, including bays and harbors. In addition to adopting criteria for inland lakes and streams, criteria could be developed for these interstate waters. EPA also recommends that the criteria take into account the quality of downstream waters, including the Gulf of Mexico since nutrients, especially nitrogen, flow with the water and may cause water quality problems long distances from their source. Beyond use of the 25th percentile of available nitrogen data, EPA has not provided guidance on how to take into account the hypoxic (very low oxygen) conditions of the Gulf.
To better address the options listed above the Department requested researchers from the Department's Integrated Science Services Division and the U. S. Geological Survey (Department of Interior) to study Wisconsin streams and rivers. Two study reports will be published in 2006. The first report evaluates 250 small and medium sized streams. The second report dealing with over 30 large streams and rivers will be completed late this year. The Department intends to use the results of these two reports, related study reports from Minnesota and Michigan and past Department studies to develop and recommend criteria that are specific to Wisconsin's lakes and streams.
Statutory authority
Statutes interpreted: s.
281.15, Stats.
Staff time required
Staff estimates that 20 to 30 months are needed to complete promulgation of the nutrient criteria for lakes and streams. An initial target for completion of the promulgation process is early 2008. Due to the complexity of the issue, a Department work group will need to review both recent and past studies, evaluate other pertinent data, and analyze implementation issues. After the work group process has sufficiently advanced, an external advisory group will be convened. Public hearings should be held in late-summer of 2007. Overall, it is estimated that approximately 2000 hours in staff time will be needed for the various steps in this process.
Entities affected by the rule
Either directly or indirectly, the nutrient criteria will likely affect the majority of point sources and urban and rural nonpoint sources. The number and extent that will be affected will depend on the values promulgated.
For municipal and industrial point sources, the nutrient criteria may require phosphorus removal for dischargers below the ch.
NR 217, Wis. Adm. Code, phosphorus effluent limits threshold levels. It may also require lower limits for those with either 1 mg/l or alternate limits under ch.
NR 217. At the same time, there will be a group of point source dischargers unaffected by the rule. Again, the number and the extent of any additional point source limits cannot be determined at this time.
Nutrient criteria will likely result in some additional lakes or streams being added to the section 303(d) Clean Water Act impaired waters list. TMDLs for these waters will identify the need for nutrient control from agriculture and urban nonpoint sources in watersheds draining to the impaired waters. In many situations, installation of best management practices to meet the required nonpoint source performance standards and prohibitions will be sufficient to attain and maintain the nutrient criteria. In those situations, no additional nonpoint source control is needed. In other situations, where the nonpoint source performance standards and prohibitions are insufficient, the result of this rule will be additional nonpoint source controls.
Comparison with federal regulations
In 2000, EPA promulgated nutrient criteria guidance for both lakes and streams and set a promulgation deadline of the end of 2004. For states choosing to conduct applicable studies, EPA has extended that deadline for states an additional three years. The estimated time needed to develop the rule may extend somewhat beyond EPA's extended schedule.
As briefly described above in the Subject/Objective section of the scope statement, states have the option to directly promulgate EPA's guidance values as criteria or to develop and justify reference or effects-based values as criteria for lakes and streams.
Transportation
Subject
Objective of the rule. This rule making will amend ch.
Trans 200, relating to displaying attractions on highway specific information signs, to include the category of “Attractions" within the Specific Information Sign program and establish guidelines for criteria of qualification for “Attractions."
Policy analysis
2005 Wis. Act 136 amended s.
86.195, Stats., which adds the “Attractions" category to the Specific Information Sign program and authorizes the amendment of ch.
Trans 200 to include specific criteria addressing the qualifications of an attraction. This also would give the Department a chance to add different types of tourist type businesses to the program that may not have had the chance to be included in any directional signing programs.
Comparison with federal regulations
This rule making would establish more detailed criteria on qualifications to the attractions category, therefore, Wisconsin would be consistent with the Federal Highway Administration Manual on Uniform Traffic Control Devices by adding the attractions category to the Specific Information sign program.
Entities affected by the rule
Department of Tourism, Department of Transportation, Outdoor Advertisers Association, Tourism business community, historic and cultural sites, and various amusements throughout the state.
Statutory authority
Staff time required
160 hours.
Transportation
Subject
Objective of the rule. This proposal will amend ch.
Trans 276, which establishes a network of highways on which long combination vehicles may operate, by adding two highway segments to the network. The actual segments being proposed are:
CTH T from USH 12 to STH 29
CTH F from STH 124 to 85th Avenue
Policy analysis
Federal law requires the Department of Transportation to react within 90 days to requests for changes to the long truck route network. Wisconsin state law requires that the Department use the administrative rule process to make changes to the long truck route network. Chapter
Trans 276 is an existing rule set up for long truck routes. The Department has received a request from Nestle USA, Eau Claire, Nutrition Division to add these highway segments.
Current law limits straight trucks on the highways in question to 40 feet in length and combination vehicles to 65 feet in length. Double bottom trucks are currently not permitted on these stretches of highway.
Designating these particular highways as “long truck routes" would lift all limits on overall truck length and permit double-bottom trucks to be operated on the routes, provided that the trailer on a combination vehicle does not exceed 53 feet in length and no trailer on a double bottom exceeds 28 feet in length. This proposed rule change would not permit overweight loads.
Increasing overall vehicle length raises two primary safety concerns on any highway. First, whether the physical geometrics of the highway will permit longer vehicles to operate upon it. That is, “will the vehicles physically fit on the highway?" Sharp corners, for example, can make it impossible for a long vehicle to navigate a route while remaining within its lane of travel. Second, longer vehicles are more difficult for traffic to pass. This is especially true on 2-lane roads.
Comparison with federal regulations
In the Surface Transportation Assistance Act of 1982 (STAA), the federal government acted under the Commerce clause of the United States Constitution to provide uniform standards on vehicle length applicable in all states. The length provisions of STAA apply to truck tractor-semitrailer combinations and to truck tractor-semitrailer-trailer combinations. (See Jan. 6, 1983, Public Law 97-424, § 411) The uniform standards provide that:
•
No state shall impose a limit of less than 48 feet on a semitrailer operating in a truck tractor-semitrailer combination.
•
No state shall impose a length limit of less than 28 feet on any semitrailer or trailer operating in a truck tractor-semitrailer-trailer combination.
•
No state may limit the length of truck tractors.
•
No state shall impose an overall length limitation on commercial vehicles operating in truck tractor-semitrailer or truck tractor-semitrailer-trailer combinations.
•
No state shall prohibit operation of truck tractor-semitrailer-trailer combinations.
The vehicles authorized by the STAA may operate on the national system of interstate and defense highways and on those federal aid primary highways designated by regulation of the secretary of the United States Department of Transportation. In 1984 the USDOT adopted
23 CFR Part 658 which in Appendix A lists the highways in each state upon which STAA authorized vehicles may operate. Collectively these highways are known as the National Network. In
1983 Wisconsin Act 78, the legislature enacted s.
348.07 (4), Stats., which directs the Wisconsin Department of Transportation to adopt a rule designating the highways in Wisconsin on which STAA authorized vehicles may be operated consistent with federal regulations.
The Department of Transportation first adopted ch.
Trans 276 of the Wisconsin Administrative Code in December of 1984. The rule is consistent with
23 CFR Part 658 in that the Wisconsin rule designates all of the highways in Wisconsin that are listed in
23 CFR Part 658 as part of the National Network for STAA authorized vehicles. The federal regulation does not prohibit states from allowing operation of STAA authorized vehicles on additional state highways. The rule making authority granted to the Wisconsin Department of Transportation in s.
348.07 (4), Stats., allows the DOT to add routes in Wisconsin consistent with public safety. The rule making process also provides a mechanism to review requests from businesses and shipping firms for access to the designated highway system for points of origin and delivery beyond 5 miles from a designated route. A process to review and respond to requests for reasonable access is required by
23 CFR Part 658.
Entities affected by the rule
The rule will affect Nestle USA, Eau Claire, Nutrition Division, the requester of the route to be designated, customers of Nestle USA on the route, other operators of commercial motor vehicles on the routes, Chippewa and Eau Claire Counties which maintain the highways at issue, and all motor vehicle operators who drive on the designated roads.
Eau Claire County opposes designation of CTH F segment as it crosses primarily residential areas of the county and is being suggested for designation primarily to service a single farm for Nestle. Chippewa County opposes designation of both routes and states it will control weights on these county highways under s.
349.15 if we adopt this rule making.
Statutory authority
Staff time required
It is estimated that state employees will spend 40 hours on the rule-making process, including research, drafting and conducting a public hearing.
Transportation
Subject
Objective of the rule. This proposal will amend ch.
Trans 276, which establishes a network of highways on which long combination vehicles may operate, by adding one highway segment to the network. The actual segment being proposed is:
STH 35 from Frederic to Siren
Policy analysis
Federal law requires the Department of Transportation to react within 90 days to requests for changes to the long truck route network. Wisconsin state law requires that the Department use the administrative rule process to make changes to the long truck route network. Chapter
Trans 276 is an existing rule set up for long truck routes. The Department has received a request from H & P Express in Askov, Minnesota, to add this highway segment.
Current law limits straight trucks on the highways in question to 40 feet in length and combination vehicles to 65 feet in length. Double bottom trucks are currently not permitted on these stretches of highway.
Designating these particular highways as “long truck routes," would lift all limits on overall truck length and permit double-bottom trucks to be operated on the routes, provided that the trailer on a combination vehicle does not exceed 53 feet in length and no trailer on a double bottom exceeds 28 feet in length. This proposed rule change would not permit overweight loads.
Increasing overall vehicle length raises two primary safety concerns on any highway. First, whether the physical geometrics of the highway will permit longer vehicles to operate upon it. That is, “will the vehicles physically fit on the highway?" Sharp corners, for example, can make it impossible for a long vehicle to navigate a route while remaining within its lane of travel. Second, longer vehicles are more difficult for traffic to pass. This is especially true on 2-lane roads.
Comparison with federal regulations
In the Surface Transportation Assistance Act of 1982 (STAA), the federal government acted under the Commerce clause of the United States Constitution to provide uniform standards on vehicle length applicable in all states. The length provisions of STAA apply to truck tractor-semitrailer combinations and to truck tractor-semitrailer-trailer combinations. (See Jan. 6, 1983, Public Law 97-424, § 411) The uniform standards provide that:
•
No state shall impose a limit of less than 48 feet on a semitrailer operating in a truck tractor-semitrailer combination.
•
No state shall impose a length limit of less than 28 feet on any semitrailer or trailer operating in a truck tractor-semitrailer-trailer combination.
•
No state may limit the length of truck tractors.
•
No state shall impose an overall length limitation on commercial vehicles operating in truck tractor-semitrailer or truck tractor-semitrailer-trailer combinations.
•
No state shall prohibit operation of truck tractor-semitrailer-trailer combinations.
The vehicles authorized by the STAA may operate on the national system of interstate and defense highways and on those federal aid primary highways designated by regulation of the secretary of the United States Department of Transportation. In 1984 the USDOT adopted
23 CFR Part 658 which in Appendix A lists the highways in each state upon which STAA authorized vehicles may operate. Collectively these highways are known as the National Network. In
1983 Wisconsin Act 78, the legislature enacted s.
348.07(4), Stats., which directs the Wisconsin Department of Transportation to adopt a rule designating the highways in Wisconsin on which STAA authorized vehicles may be operated consistent with federal regulations.
The Department of Transportation first adopted ch.
Trans 276 of the Wisconsin Administrative Code in December of 1984. The rule is consistent with
23 CFR Part 658 in that the Wisconsin rule designates all of the highways in Wisconsin that are listed in
23 CFR Part 658 as part of the National Network for STAA authorized vehicles. The federal regulation does not prohibit states from allowing operation of STAA authorized vehicles on additional state highways. The rule making authority granted to the Wisconsin Department of Transportation in s.
348.07 (4), Stats., allows the DOT to add routes in Wisconsin consistent with public safety. The rule making process also provides a mechanism to review requests from businesses and shipping firms for access to the designated highway system for points of origin and delivery beyond 5 miles from a designated route. A process to review and respond to requests for reasonable access is required by
23 CFR Part 658.
Entities affected by the rule
The rule will affect the requester of the route to be designated and other operators of commercial motor vehicles. Permitting long trucks on the route will necessarily affect all persons operating on the stretch of highway in question.
Statutory authority
Staff time required
It is estimated that state employees will spend 40 hours on the rule-making process, including research, drafting and conducting a public hearing.
Transportation
Subject
Objective of the rule. This rule making will create ch.
Trans 515, relating to contractual service procurement, pursuant to
2005 Wis. Act 89, which requires the Department to perform a cost benefit analysis prior to contracting out engineering and other specialized services under s.
84.01 (13), Stats., that are estimated to cost $25,000 or more.
Policy analysis
The Department has traditionally made decisions to contract out for engineering and other specialized services under s.
84.01 (13), Stats., using information from a variety of sources, including resource modeling, performance measures and contract by contract cost comparison.
2005 Wisconsin Act 89 requires the Department to conduct a cost benefit analysis for each proposed engagement of engineering or other technical services expected to cost $25,000 or more. The proposed rule will implement the requirements of the statute and provide guidance for Department employees in conducting the analysis.
Entities affected by the rule
No outside entities are directly impacted by the proposed rule as its requirements will be fulfilled by Department employees. Collective bargaining organizations representing state employees, as well as consulting firms, have an interest in the provisions of the rule as the outcomes of decisions made under the rule may affect the amount of work available to them to perform.
Statutory authority
Staff time required
It estimated that it will take a total of 200 staff hours to develop.
Workforce Development
Subject
Notifying W-2 participants of payment reductions and case closures and determining good cause for failing to comply with W-2 participation requirements.
Policy analysis
Section
49.153 (1), Stats., as created by
2005 Wisconsin Act 25, provides that before taking any action against a Wisconsin Works (W-2) participant that would result in a 20 percent or more reduction in the participant's benefits or in termination of the participant's W-2 eligibility, a W-2 agency must provide the W-2 participant with written notice of the proposed action and the reasons for the proposed action; make reasonable attempts to explain to the W-2 participant orally in person or by phone the reasons for the proposed action; and allow the participant a reasonable time to rectify the deficiency, failure, or other behavior to avoid the proposed action. Section
49.153 (2), Stats., provides that the Department shall promulgate rules that establish the procedures for the notice and explanation and that define “reasonable attempts" and “reasonable time" as used in s.
49.153 (1), Stats.
The Department proposes that the W-2 agency will provide the required written notice to the participant. Within 5 days after the mailing date of the written notice, the W-2 agency must either orally notify or make reasonable attempts to orally notify the participant of the proposed action and the reason for the proposed action.
The W-2 agency may notify the participant by phone calls at the participant's home, child care provider, message phone, or work site or in person at the participant's home, child care provider, work site, or the W-2 agency. The oral notification shall include telling the participant which activities were missed, discussing the reason for the nonparticipation, providing the participant the opportunity to present good cause for failing to participate, and informing the participant of the right to appeal the agency decision. Two or more attempts using any of the methods described above will be considered “reasonable attempts" at notification.
The W-2 participant will have 7 working days after the oral notification or after the W-2 agency's last attempt to make oral notification as “reasonable time" to rectify the deficiency, failure, or other behavior. If the deficiency, failure, or other behavior that caused the payment reduction is rectified too late in the W-2 payment cycle to avoid a payment reduction, the W-2 agency shall promptly initiate a supplemental payment.
In addition, the Department proposes to amend s.
DWD 12.20 relating to good cause for failing to comply with W-2 participation requirements. Section
49.148, Stats., provides that for every hour that a W-2 participant in a community service job or transitional placement fails to participate in an assigned activity without good cause, the participant's grant amount shall be reduced by $5.15. Good cause is to be determined by the W-2 financial and employment planner (FEP) in accordance with rules promulgated by the department. Also, s.
49.151, Stats., and s.
DWD 12.21 provide that a participant who refuses to participate 3 times in any W-2 employment position component is ineligible to participate in that component. The definition of the more serious “refuses to participate" includes fails to appear for an interview with a prospective employer or fails to appear for an assigned activity without good cause under s.
DWD 12.20 as determined by the W-2 agency and voluntarily leaves appropriate employment or training without good cause under s.
DWD 12.20 as determined by the W-2 agency.
The current s.
DWD 12.20 provides that good cause for failing to comply with the W-2 participation requirements includes a required court appearance, unavailability of child care that is necessary to participate in required activities, and other circumstances beyond the control of the participant as determined by the FEP. The W-2 participant must provide timely notification of the good cause reason to the FEP.
The Department proposes to amend s.
DWD 12.20 to add 10 specified circumstances that constitute good cause, including lack of transportation, inclement weather, school emergency, death in immediate family, and observance of a religious holiday. The Department also proposes that a W-2 participant must notify the FEP of good cause within 7 working days after an absence from a W-2 assigned activity to prevent a payment reduction.
The proposed good cause amendments are based on the recommendations in the W-2 Sanctions Study released by the Department in December 2004. The purpose of the study was to provide information to support the Department's commitment to ensure that W-2 sanctions are not applied due to factors such as an individual's race, ethnicity, geographic location, employment barriers, or other issues that have not been adequately identified or addressed by the participant's FEP. The W-2 Sanctions Study incorporated the findings of a steering committee that consisted of W-2 agency administrators, state administrators, representatives of client advocacy groups, and academics.
Entities affected by the rule
W-2 agencies and participants
Comparison with federal regulations
If an individual refuses to engage in work, the state must reduce or terminate the amount of payable to the family, subject to any good cause exceptions the state may establish. The state must, at a minimum, reduce the amount of assistance otherwise payable to the family pro rata with respect to any period during the month in which the individual refuses to work. The state may not reduce assistance based on an individual's refusal to engage in work if the individual is a single custodial parent caring for a child under age 6 who has a demonstrated inability to obtain needed child care.
Statutory authority
Staff time required
175 hours.
