Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 578, 2/14/2004

Rule-making notices

Notice of Hearing

Commerce

(Public Employee Safety and Health,
Ch. Comm 32)

[CR 04-009]

NOTICE IS HEREBY GIVEN that pursuant to s. 101.055 (3), Stats., the Department of Commerce will hold a public hearing on proposed rules relating to public employee safety and health.

The public hearing will be held as follows:

Date and Time:	Location:
February 26, 2004 (Thursday) 10:00 a.m.	Room 3C Thompson Commerce Center 201 West Washington Avenue Madison

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 March 12, 2004, 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 Ronald Acker, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at racker@ commerce.state.wi.us.

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

Copies of Rule and Contact Person

The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division web site at www.commerce.state.wi.us/SB/SB- HomePage.html. Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at [e-mail], or telephone [phone] or [phone] (TTY). Copies will also be available at the public hearing.

Analysis Prepared by the Department of Commerce

Statutory Authority: s. 101.055 (3), Stats.

Statutes Interpreted: s. 101.055 (3), Stats.

The Department of Commerce proposes an order to amend ss. Comm 32.003 (2), 32.35 (1), 32.38 (1), and 32.50 (1); to repeal and recreate s. Comm 32.50 Table 32.50-1; and to create ss. Comm 32.11 and 32.39 (1) Note, relating to public employee safety and health.

The Department of Commerce is responsible for adopting standards to protect the safety and health of public employees in the state of Wisconsin. The adopted standards must provide protection at least equivalent to that afforded to private sector employees under standards administered and enforced by the federal Occupational Safety and Health Administration (OSHA). Chapter Comm 32 currently contains general safety and health standards for all public employees through the incorporation by reference of several OSHA standards. Chapter Comm 32 also contains requirements that add to or modify the OSHA standards.

The proposed rules consist of revisions in ch. Comm 32, including the incorporation by reference of the new OSHA standards issued since the last chapter update in 2002. Those standards cover illness and injury reporting; signs, signaling and barricades; shipyard employment; exit routes, emergency action plans and fire prevention plans; and materials handling and storage.

The proposed rules also contain new requirements that more clearly articulate the need for the development and implementation of a safety and health program.

The proposed rules have been developed with the assistance of the Public Safety Advisory Council. The members of that citizen advisory council are as follows:

Name	Representing
Ken Blomberg	Wis. Rural Water Association
Jose Bucio	Wisconsin State AFL-CIO
Vance Forrest	Wisconsin Counties Association
Boyd Garey	DOA State Risk Management
David Hanneman	Wisconsin Education Association Council
Ron Kent	American Federation of State, County & Municipal Employees
Dave Kodel	Wisconsin Alliance of Cities
James Kropp	DOA Division of State Facilities
Don Lythjohan	Madison Metropolitan Sewerage District
Thomas Rowe	City of Milwaukee
Richard Stadelman	Wisconsin Towns Association
Ernest Stracener	University of Wisconsin System
Dennis Tweedale	League of Wis. Municipalities

Initial Regulatory Flexibility Analysis

The proposed rules will not affect any small businesses as defined in s. 227.114 (1) (a), Stats. The proposed rules apply to public sector employers and employees.

Notice of Environmental Analysis

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

Fiscal Estimate

The Safety and Buildings Division currently administers and enforces the provisions of ch. Comm 32 as part of the public sector safety and health program. The proposed rules update the existing administrative rules now being enforced, and the new requirements should not significantly affect costs or revenues. Therefore, the proposed rules will not have any fiscal effect on the Division.

At the local government level, there should be no significant fiscal effect. Some of the new requirements may result in additional costs in time and equipment for some local governments; however, these costs should be minimal.

Notice of Hearings

Public Instruction

[CR 04-008]

NOTICE IS HEREBY GIVEN That pursuant to ss. 118.51 (5) (d) and 227.11 (2) (a), Stats., and interpreting ss. 118.51 and 121.81, Stats., the Department of Public Instruction will hold public hearings as follows to consider the amending of Chapter PI 36, relating to public school inter-district open enrollment. The hearings will be held as follows:

Date and Time:		Location:
March 16, 2004 4:30 – 6:30 p.m.		Chippewa Falls CESA 10 725 W. Park Avenue Office
March 17, 2004 4:30 – 6:30 p.m.		Wausau Longfellow Administration Center 415 Seymour Street Nicholson Board Room
March 18, 2004 4:30 – 6:30 p.m.		Wauwatosa Wauwatosa School District 12121 W. North Avenue Conference Room A
March 23, 2004 4:30 – 6:30 p.m.		Madison GEF 3 Building 125 South Webster St. Room 041

The hearing sites are fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call Mary Jo Cleaver, Open Enrollment Consultant, at [phone] or leave a message with the Teletypewriter (TTY) at [phone] at least 10 days prior to the hearing date. Reasonable accommodation includes materials prepared in an alternative format, as provided under the Americans with Disabilities Act.

Copies of Rule and Contact Person

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

Lori Slauson,
Administrative Rules and Federal Grants Coordinator
Department of Public Instruction
125 South Webster Street
P.O. Box 7841
Madison, WI 53707

Written comments on the proposed rules received by Ms. Slauson at the above address no later than March 29, 2004, will be given the same consideration as testimony presented at the hearing. Comments submitted via email will not be accepted as formal testimony.

Analysis by the Department of Public Instruction

1997 Wisconsin Act 27 created the full-time inter-district public school open enrollment program. Since that time, several laws affecting the program have been enacted and administrative procedures have been developed for the efficient operation of the program. This proposed order updates and amends ch. PI 36 to address statutory changes to the program, to provide clarification in some areas and to amend administrative procedures, including removal of some unnecessary reporting.

1997 Wisconsin Act 164 made significant changes to special education law. The proposed order brings the rules into conformity with Act 164, including changing the terms “handicapped child" and “child with exceptional educational needs" to be “child with a disability," and eliminating reference to screening children for disabilities and multi-disciplinary teams.

1999 Wisconsin Act 117 amended the open enrollment law to provide that pupils could open enroll for 4-year-old kindergarten only if the pupil's resident school district also provides 4-year-old kindergarten and only if the pupil is eligible for 4-year-old kindergarten in the resident school district. This order incorporates the provisions of Act 117 into the rules.

1999 Wisconsin Act 118 provided that a pupil could apply to no more than three nonresident school districts in any application period. The proposed rules provide that if a pupil applies to more than three school districts in any application period, any applications submitted during that application period may be declared invalid by the resident and/or each nonresident school district may declare the application it received invalid.

In addition, the proposed rules clarify that a resident school district must be indicated on the application form, that the resident school district to be indicated on the application form is the resident district in which the pupil will reside in the first year of open enrollment, and that the pupil may not indicate multiple resident school districts. If the pupil is not a resident of the district indicated on the form on the immediately following third Friday in September, the open enrollment is void.

2003 Wisconsin Act 55 permits nonresident school districts to establish waiting lists of pupils who have been denied due to lack of space and requires the department to adopt administrative rules to implement and administer the provision. The proposed rules require school boards that wish to establish waiting lists to adopt policies prior to the first day of the application period to which the waiting list will first apply. The policies must include all of the following:

• A procedure to establish a numbered waiting list of all applicants, following its acceptance and rejection criteria and the required random selection process.

• A procedure for notifying parents if the pupil has been accepted from the waiting list. The notification must include:

- Notice that the pupil has been accepted from the waiting list and of the school or program to which the pupil will be assigned.

- A date by which the parent must notify the board whether the pupil will attend the nonresident school district and the procedures to follow. The board must provide seven days for the parent to respond and may provide that if the parent does not respond within the specified time period, the acceptance will be rescinded and the space will be offered to the next applicant on the waiting list.

The last date on which the school board may offer applicants a space from the waiting list is the third Friday in August.

The proposed rules require that the denial notice must include the pupil's place on the waiting list.

Clarifications and Amendments to Administrative Procedures:

• Clarify that pupils not enrolled in a Wisconsin public school district during the application period may apply for open enrollment and must enroll in the resident school district after being approved and prior to attendance in the nonresident school district.

• Provide that a nonresident school district must notify the parent of an open enrolled pupil prior to the first day of the application period if the pupil will be required to reapply because the board's policy requires reapplication at the beginning of middle school, junior high or high school. Clarify that the resident school board does not act on such a reapplication.

• Permit, but not require, a nonresident school board to determine that a pupil may not open enroll if the parent has not provided the required notice of intent to attend.

• Eliminate the requirement that a parent must submit an application for reimbursement of transportation expenses by April 1 to be ensured of reimbursement in the following school year.

• Provide that after the pupil has begun attending a nonresident school district (at least until the third Friday in September of the first year of open enrollment), the pupil may continue to attend the nonresident school district without reapplication (except as permitted in the statute) even if the pupil moves to a different school district. Provide that the resident school district on the third Friday in September is considered the resident school district for the entire school year.

• Clarify that if a pupil withdraws from the nonresident school district or enrolls in and attends another public school district, private school or home-based private educational program, the open enrollment ends and the pupil may not resume open enrollment without submitting a new application in the next open enrollment application period. Provide that if a pupil has not attended the nonresident school district on or before the third Friday in September, the open enrollment ends. Also provide that if a nonresident school district expels an open enrolled pupil, it may also terminate the pupil's open enrollment.

• The proposed rules eliminate requirements for school boards to send copies to the department of various actions that do not affect the aid adjustment nor are required to be reported to the legislature.

• Clarify what actions must be reported to the resident school district and the department. These are actions that would affect the pupil's open enrollment status and/or the aid adjustment.

• Provide that school board open enrollment policies must be adopted or revised prior to the beginning of the application period to which they will first apply.

• Eliminate the requirement to send decisions in open enrollment appeals by certified mail.

Fiscal Estimate

For the most part, the rule modifications reflect current practice and should not have a fiscal effect on school districts.

Costs to the department may be reduced because of the elimination of appeal decisions being sent by certified mail. The department could save at least $1,750 per year assuming 250 appeals are sent annually to both the appellant and school district administrator by certified mail at $3.50 each. Costs associated with staff time necessary to prepare the certified mailings will also be reduced. These savings are indeterminate.

Initial Regulatory Flexibility Analysis

The proposed rules are not anticipated to have a fiscal effect on small businesses as defined under s. 227.114 (1) (a), Stats.

Notice of Hearing

Veterans Affairs

[CR 04-003]

NOTICE IS HEREBY GIVEN That the Department of Veterans Affairs will hold a public hearing on the 27th day of February, 2004, at 11:05 a.m., in the 8th floor board room at 30 West Mifflin Street in Madison, Wisconsin.

Analysis Prepared By The Department Of Veterans Affairs

Statutory authority: s. 45.35 (3), Stats.

Statutes interpreted: ss. 45.25, 45.396, and 45.397, Stats.

The creation of s. VA 1.20 will enable the department to seek recovery from a recipient who improperly receives a grant under ss. 45.25, 45.396, and 45.397, Stats. Under current law, the department has the authority to recover and suspend state veterans' benefits whenever an applicant willfully provides false or fraudulent information on an application, with the intent of receiving benefits. The proposed language would allow the department to recover educational grant benefits that were erroneously paid for reasons other than the willful attempt to fraudulently obtain benefits.

Initial Regulatory Flexibility Analysis

This rule is not expected to have any adverse impact upon small businesses.

Fiscal Estimate

Based upon the annual average of potential recoveries over FY00-FY03, it is expected that the department may be able to annually reduce expenditures by $14,100.

Copies of Rule and Contact Person

A copy of the proposed rules and the full fiscal estimate may be obtained by contacting:

John Rosinski
Wisconsin Department of Veterans Affairs
PO Box 7843
Madison, WI 53707-7843

For questions concerning the hearing, contact:

John Rosinski [phone]

Notice of Hearing

Workforce Development

(Labor Standards, Chs. DWD 270-279)

[CR 04-010]

NOTICE IS HEREBY GIVEN that pursuant to ss. 103.66 and 227.11, Stats., the Department of Workforce Development proposes to hold a public hearing to consider rules relating to child labor.

Hearing Information

March 4, 2004 (Thursday) 1:30 p.m.

GEF 1 Building, Room B103 201 E. Washington Avenue MADISON

Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.

Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call [phone] at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.

Contact Information

The proposed rules are available on the DWD web site at http://www.dwd.state.wi.us/dwd/hearings.htm.

A paper copy may be obtained at no charge by contacting:

Elaine Pridgen, Office of Legal Counsel
Dept. of Workforce Development
201 E. Washington Avenue
P.O. Box 7946
Madison, WI 53707-7946
[phone] or [e-mail]

Written Comments

Written comments on the proposed rules received at the above address no later than March 5, 2004, will be given the same consideration as testimony presented at the hearing.

Analysis Prepared by the Department of Workforce Development

Statutory authority: Sections 103.66 and 227.11, Stats.

Statutes interpreted: Section 103.64 to 103.82, Stats.

Section 103.66, Stats., provides that the department may determine reasonable classifications of employment, places of employment, maximum hours of employment per day and per week, maximum days of employment per week, hours at which employment may begin and end and the duration of lunch and other rest periods, and prohibited hazardous employment as necessary to protect the life, health, safety, or welfare of minors. The proposed rule repeals and recreates the existing classifications in Chapter DWD 270 with some substantive changes and some reorganization solely to clarify the rule language.

Hazardous employment. Proposed substantive changes to the provisions on minimum ages for hazardous employment and prohibited occupations or places of employment prejudicial to the life, health, safety, or welfare of minors include the following:

• No minor may be employed as an exotic dancer, regardless of whether liquor is sold in the establishment.

• No minor may work as a bouncer, crowd controller, or identification checker in establishments where liquor is present.

• No minor may work on or about a roof. The current rule prohibits minors from working in the installation of roofs but allows minors to work on or about a roof for other purposes. The proposed rule prohibits any work on a roof, including carpentry and metal work, gutter and downspout work, installation and servicing of television and communication equipment such as cable and satellite dishes, installation and servicing of heating and air conditioning equipment, and any similar work that is required to be performed upon or about roofs.

• The provision allowing occasional and incidental driving by minors is amended to coincide with federal law, as found in the “Drive for Teen Employment Act" (Public Law 105-334, 29 USC 213(c)(6)). The current rule provides that the driving must be during daylight hours, the minor must hold a driver's license for the type of driving involved and must have completed a state-approved driver education course, the automobile or truck does not exceed 6,000 pounds, and the vehicle is equipped with a seat belt for the driver and for each helper, and the employer has instructed each minor that such belts must be used. In addition to these provisions, the proposed changes include the following:

- The minor must be at least 17 years old. The current rule does not contain a minimum age.

- The driving may be no more than one-third of an employee's work time in any workday and no more than 20% of any employee's work time in any work week.

- The driving takes place within a 30 mile radius of the minor's place of employment.

- The driving does not involve the towing of vehicles; route deliveries or route sales; transportation for hire of property, goods, or passengers; urgent, time-sensitive deliveries; or the transporting at any time of more than 3 passengers, including the employees of the employer.

- The driving performed by the minor does not involve more than two trips away from the primary place of employment in any single day for the purpose of delivering goods of the minor's employer to a customer or for the purpose of transporting passengers other than the employees of the employer.

• An exception to the general prohibition against minors working in any occupation involved with paper-products machines is created to coincide with federal law at Public Law 104-174, 29 USC 213(c)(5)(A). The exception in federal law and the proposed rule provides that 16- and 17-year-old minors may load materials into, but not operate or unload, a scrap paper baler or a paper box compactor only if all of the following conditions are met:

- The scrap paper baler or paper box compactor meets the applicable ANSI standard.

- The scrap paper baler or paper box compactor includes an on-off switch incorporating a key-lock or other system and the control of the system is maintained in the custody of employees who are 18 years of age or older.

- The on-off switch of the scrap paper baler or paper box compactor is maintained in an off position when the machine is not in operation.

- The employer posts a notice on the scrap paper baler or paper box compactor in a prominent position and easily visible to any person loading, operating, or unloading the machine stating that: “The scrap paper baler or compactor meets the industry safety standard applicable to the machine, Standard ANSI Z245.5-1990 for scrap paper balers and Standard ANSI Z245.2-1992 for paper box compactors. Sixteen- and 17-year-old employees may only load the scrap paper baler or paper box compactor. No employee under the age of 18 may operate or unload the scrap paper baler or paper box compactor."

• The definition of explosives is revised in the subsection prohibiting minors from working with certain explosives. The current rule refers to explosives designated by the Interstate Commerce Commission, which was abolished in 1995. The proposed rule refers to explosives designated by the Bureau of Alcohol, Tobacco and Firearms to be covered by 18 USC 841(d), relating to importation, manufacture, distribution, and storage of explosive materials.

• An exception is added to the prohibition against minors operating hoists to clarify existing law. Sixteen- and 17-year-old minors may operate floor jacks, service jacks, hand jacks, drive-on lifts, and arm lifts used in conjunction with repairing or servicing motor vehicles. No minor under 16 years of age may operate a motor vehicle lift of any type or work in a pit underneath a motor vehicle.

Hours minors may work. An exception to the requirement that minors 12 and 13 years of age may not be employed more than 6 days per week is created for minors working in farming. The latest time that minors 16 and 17 years of age may work on days not preceding school days is changed from 12:30 a.m. to 12 midnight. Students who are enrolled in a private or public school but receiving instruction at home through special arrangement may work the same hours as if they were attending the public school. Students enrolled in a charter school may not work during hours they are scheduled to be in the charter school.

Initial Regulatory Flexibility Analysis

The proposed rules prevent small businesses from hiring minors in certain occupations deemed hazardous to the minors' health, safety, or welfare.

Fiscal Estimate

The proposed rules prevent governmental bodies from hiring minors in certain occupations deemed hazardous to the minors' health, safety, or welfare but these prohibitions have no fiscal impact.