Rule-Making Notices (Hearing Notices)

The proposed rule is permissive. It does not require the department to accept documents transmitted electronically as originals when there may be doubts about the completeness or authenticity of the document. The department may make inquiries and require additional authentication. The department also retains its strong preference for receipt of certain documents in the original (or by certified copy), such as court orders. However, when authenticity is satisfactorily established, the rule provides the department may even accept court orders by fax or e-mail.

Since the department promulgated its first fax rule in 1995, an occasional question has arisen about whether the rule prohibited receiving documents by facsimile if the document was not specifically listed in the rule, or whether DETF had technically “received" a document at all if it arrived by fax but the sender then deliberately failed to send the original within 14 days. This proposed rule resolves those questions, in large part, by removing the list of permitted documents and minimizing the criteria for deeming a fax or e-mail document as “received" by the department.

Some administrative rules written since 1995 have included specific authorization to receive a particular document by “fax." This proposed rule codifies a general policy, rather than a piecemeal approach, by amending those provisions to fit under the proposed rule.

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

Public Law 106-229 (June 30, 2000), the federal Electronic Signatures in Global and National Commerce Act, codified at 15 U.S. Code ss. 7001 to 7006, 7021 and 7031, provides that in all transactions in or affecting interstate or foreign commerce, a contract or other record relating to the transaction shall not be denied legal effect merely because it is in electronic form. The federal law generally preempts state laws that require contracts or other records be written, signed, or in non-electronic form and, to at least some extent, requires governmental agencies to use and accept electronic records and electronic signatures with respect to records other than contracts to which the agency is a party. However, the federal law also allows states to instead adopt the Uniform Electronic Transactions Act as approved and recommended for enactment in all the States by the National Conference of Commissioners on Uniform State Laws.

Comparison with rules in adjacent states:

There are numerous administrative code provisions in adjacent states that use the terms “facsimile," “fax," “e-mail" or “electronic mail." A search on one legal database located 880 documents containing such references. For example, the Illinois Secretary of State accepts filings by electronic or facsimile transmission and the date the transmission is received is the receipt date, if the document is acknowledged and accepted. See 2 Illinois Administrative Code s. 570.40. Similar provisions for honoring the time of receipt of a fax can be found in 44 Ill. Adm. Code ss. 1.2005, 500.300, 526.2005, 1100.2005, 1120.2005, 1300.2005, 1400.2505, 1500.2005, 1600.2005 and 2000.2005. Some other Illinois code provisions require a separate acknowledgement of receipt in order to establish the fax was received.

Summary of factual data and analytical methodologies:

The proposed rule is based on DETF experiences with documents received by fax, particularly under the 1995 fax rule codified as s. ETF 10.82 (2).

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

The department relies on the text of proposed rule itself, which affects only the department and persons who elect to communicate with the department by fax or e-mail. The rule applies only to such communications. The vast majority of the communications to and from the Department pertain to the pension and employee fringe benefit plans administered by the Department and benefit determinations concerning particular individuals. The only employers participating in these benefit plans are the state and some local units of government in the state. The rule therefore has no effect on small businesses.

Anticipated costs incurred by private sector:

None.

Effect on small business:

No effect.

Agency contact person name and title:

For questions about the proposed rule, please write or call Robert Weber, Chief Counsel, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Telephone: [phone]. Fax: [phone]. E-mail: [e-mail]

Place where comments are to be submitted and deadline for submission:

Written comments on the proposed rule may be submitted to Robert Weber, Chief Counsel, Department of Employee Trust Funds, 801 W. Badger Road, P.O. Box 7931, Madison, WI 53707-7931. Written comments must be received at the Department of Employee Trust Funds no later than 4:30 PM on Friday, November 12, 2004.

Initial regulatory flexibility analysis:

The proposed rule has no effect on small businesses.

Fiscal estimate:

The proposed rule has a direct fiscal impact on the Department of Employee Trust Funds, which will need to expand the number of ports available for its fax server in order to handle DETF fax machines not currently connected to the server. DETF is able to verify time of receipt outside of normal working hours only if the fax machine is connected to the fax server. The cost to upgrade to eight (8) fax lines is $2,495. The cost of extended support, to assure one day turnaround in the event of a failure, is an additional $1,495 per year. It is possible that additional telephone lines may also be necessary. Those costs are not included in this estimate. These costs would be administrative expenses borne by the Public Employee Trust Fund, not state funds.

The proposed rule generates no revenues for unit of government. It has no effect on the fiscal liabilities of the state or of any county, city, village, town, school district, technical college district or sewerage district.

Free copies of proposed rule:

Copies of this rule are available without cost by making a request to the Department of Employee Trust Funds, Office of the Secretary, P.O. Box 7931, Madison, Wisconsin 53707-7931, telephone [phone].

Notice of Hearings
(revised from 9-30-04 Register)

Natural Resources

Environmental Protection—Water Regulation, Chs. NR 300—

[CR 04-088]

NOTICE IS HEREBY GIVEN that pursuant to ss. 30.12 (1), (1p) and (3) (br), 30.13 (1) and (1m), 30.206 and 227.11 (2), Stats., interpreting ss. 30.12 (1), (1g) (a), (b), (e) and (f), (1p), (3) and (3m), 30.13 (1) and (1m), 30.20 (1g) (b) 2. and 30.206, Stats., the Department of Natural Resources will hold public hearings on revisions to ch. NR 326, Wis. Adm. Code, relating to regulation of piers, wharves, boat shelters, boat hoists, boat lifts and swimming rafts in navigable waterways. The proposed rule will implement 2003 Wisconsin Act 118 by establishing construction, design and placement standards for projects to be eligible for statutory exemptions, establishing general permits and establishing standards for projects that may be authorized under an individual permit. The proposed rule defines and describes design standards to qualify for exemptions for piers, wharves, seasonal boat shelters, boat hoists, boat lifts and swimming rafts. The rule establishes general permits for preexisting piers and permanent boat shelters which meet certain conditions, and establishes standards for specific individual permits for piers. Department staff will work with stakeholders prior to public hearing to develop more specific standards for marinas, and identify any other general or individual permits that may be appropriate.

NOTICE IS HEREBY FURTHER GIVEN that the Department will also be seeking comments on an alternative to the Department's proposed rule that was developed by a citizen stakeholder group. A copy of this alternative rule will be available no later than October 8, 2004.

Initial regulatory flexibility analysis:

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., the proposed rule may have an impact on small businesses. The initial regulatory flexibility analysis is as follows:

a. Types of small businesses affected: Pier and building contractors, commercial marinas and other waterfront businesses along public navigable waterways will be affected by the rule revisions.

b. Description of reporting and bookkeeping procedures required: The person responsible for a project in or along a lake or stream must develop plans and occasionally conduct some analyses, submit an application, and observe the site during construction. For some activities, photographs of the completed project are required.

c. Description of professional skills required: Map reading, basic computer use, mathematics, drawing to scale, and clear writing.

While it may be helpful or efficient, hiring a consulting firm is not necessary to comply with these requirements. Many projects are planned and conducted by individuals with no professional background. If the site has particularly challenging features, such as steep slopes, erosive soils, highly variable features or if the intensity of neighboring uses are likely to create controversy, then professional ecological or engineering expertise may be helpful.

The Department's Small Business Regulatory Coordinator may be contacted at: SmallBusinessReg.Coordinator@dnr.
state.wi.us or by calling [phone].

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 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.

NOTICE IS HEREBY FURTHER GIVEN that the Department will hold an open house from 4:00 p.m. to 6:00 p.m. prior to the hearings in Green Bay, Eau Claire, Tomahawk, Hayward and Waukesha and from 10:00 to noon in Madison. Department staff will be available to answer questions regarding the proposed rules.

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

Monday, November 1, 2004 at 6:00 p.m.

Video conference participation will be available between:

Manufacturing Educ. Center
Chippewa Valley Tech. College Gateway Campus
2320 Alpine Road
Eau Claire

MAC137, Instructional Services Building
UW-Green Bay, 2420 Nicolet Drive
Green Bay

Wednesday, November 3, 2004 at 6:00 p.m.
Banquet Room, Comfort Inn and Conference Center
1738 Comfort Drive
Tomahawk

Thursday, November 4, 2004 at 6:00 p.m.
County Board Room, Sawyer Co. Courthouse
10610 Main Street
Hayward

Tuesday, November 9, 2004 at 6:00 p.m.
Room 151, State Office Building
141 NW Barstow Street
Waukesha

Wednesday, November 10, 2004 at 12:00 p.m.
Room 027, GEF #2
101 South Webster Street
Madison

NOTICE IS HEREBY FURTHER GIVEN that 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 Roberta Lund at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Submittal of comments and copy of proposed rules:

The Department's proposed rule and the stakeholder proposed rule 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 Ms. Liesa Lehmann, Bureau of Fisheries Management and Habitat Protection, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until December 1, 2004. 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 Ms. Roberta Lund, Bureau of Fisheries Management and Habitat Protection, P.O. Box 7921, Madison, WI 53707.

Fiscal Estimate

Most of the permitting activities covered by this administrative rule remain unchanged in terms of the workload required by Department staff and revenues generated by required permits. The exception is for permanent boat shelter permits, which were issued on an individual permit basis prior to Act 118, and will be issued as general permits under this proposed administrative rule. The net fiscal impact is estimated to be a workload decrease of about 95 hours/year, which equates to about $2,000 in salary and fringe benefits, and a revenue decrease of about $4,800/year.

Overall, the full implementation of Act 118 and its multiple related rules is not expected to have a major impact on DNR water permit revenues or workload.

The Department's proposed rule and the stakeholder proposed rule 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 Ms. Liesa Lehmann, Bureau of Fisheries Management and Habitat Protection, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until December 1, 2004. 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 Ms. Roberta Lund, Bureau of Fisheries Management and Habitat Protection, P.O. Box 7921, Madison, WI 53707.

Notice of Hearings

Natural Resources

Environmental Protection—Air Pollution Control, Chs. NR 400—

[CR 04-106]
(Reprinted from 9-30-04 Register)

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11 (2) (a), 285.11 (1), (6) and (17), 285.60 (6) and 285.69 (1), Stats., interpreting ss. 285.11 (6) and (17), 285.60 and 285.61, Stats., the Department of Natural Resources will hold public hearings on revisions to chs. NR 400, 406, 407 and 410, Wis. Adm. Code, relating to providing the interface of the state air permitting programs with federal changes to the air permitting program. The State Implementation Plan developed under s. 285.11 (6), Stats., will also be revised. On December 31, 2002, the U.S. Environmental Protection Agency published regulations that significantly changed the way new and modified sources of air pollution are permitted. Changes necessary to implement the federal program cannot be fully utilized unless additional changes are made to the state construction and operation permitting regulations. The proposed rule revisions have been designed to take full advantage of the flexibility made available under the proposed changes that adopt the federal air permitting revisions without compromising on Department or public opportunity for review. The proposed rule revisions are intended to provide flexibility to stationary sources utilizing the permit applicability exclusions provided within the federal rule changes.

Currently, all emission limitations and specific conditions that are contained within a construction permit are considered federally enforceable because there is no mechanism within the construction permit program to identify “state-only" requirements whose underlying authority does not rest within Wisconsin's State Implementation Plan. These rule revisions will enable Wisconsin to identify requirements as “state-only" conditions in construction permits where the underlying rule has not been submitted to U.S. Environmental Protection Agency for inclusion in the State Implementation Plan and thus not intended to be federally enforceable, or is not required by federal law.

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at:
[e-mail] or by calling [phone].

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 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.

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

Tuesday, October 26, 2004 at 1:00 p.m.
Room 124A & B, State Office Building
1681 Second Ave. South
Wisconsin Rapids

Thursday, October 28, 2004 at 1:00 p.m.
Room 511, GEF #2
101 South Webster Street
Madison

NOTICE IS HEREBY FURTHER GIVEN that 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 Bob Eckdale at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Fiscal Estimate

Proposed revisions to chs. NR 405 and 408, Wis. Adm. Code, titled “Prevention of Significant Deterioration" (PSD) and “Construction Permits for direct major sources in nonattainment areas" (NSR) respectively, provides revisions to the permitting requirements for major sources and major modifications to major sources. The revised changes, contained in Board Order AM-06-04, have been initiated due to changes in the federal versions of this permitting program. These revisions have been made with the intention of reducing applicability of the program and the administrative burden associated with permitting without sacrificing environmental quality.

Because these rule revisions will reduce the number of PSD/NSR permits that the department will process annually, revenues from the completion of these permits will be lost. Based upon 2002 permitting efforts, the department estimates this lost revenue to be $480,000 annually. Increasing minor source permitting efforts and exemption reviews, may result due to less regulatory burden, the department estimates that this increasing level would equal $140,000 based upon proposed review fees included in the proposed rule revisions.

The department estimates that although these revisions will reduce the number of projects that would be subject to permitting under the PSD/NSR program , the department will be required to spend resources conducting complex applicability determinations and preparing exclusions from the PSD/NSR program under the options provided for in the rule revisions. These exclusions will be labor intensive on the front end in order to ultimately provide regulatory relief. It is estimated that any time that would have been available as a result of the reduced number of PSD/NSR permit applications will be spent responding to requests for applicability determinations or in preparing exclusionary documents for sources taking advantage of the exclusionary options. The department estimates that the costs to prepare these exclusionary documents will equal or exceed the costs of preparing PSD/NSR permits, and but may be possible to absorb within the agency's budget. These fiscal impacts were reported in the Fiscal Estimate prepared for Natural Resources Board Order AM-06-04. Fiscal impacts associated with this proposed rule will not go beyond those estimated under Order AM-06-04. Thus no additional fiscal impacts are expected.

Long range fiscal implications: As a result of the revisions, fewer projects will be reviewed each year under federal air permit provisions resulting in lost program revenue, a portion of which may be reacquired by additional applications for state construction permits.

Submittal of comments and copy of proposed rules

The proposed rule 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 Jeff Hanson, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until November 1, 2004. 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 by writing Proposed Rules, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707 or by calling [phone].

Notice of Hearings

Natural Resources

Environmental Protection—Air Pollution Control, Chs. NR 400—

[CR 04-107]
(Reprinted from 9-30-04 Register)

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11 (2) (a), 285.11 (1) and (6), 285.60 (2g), (3) and (6) and 285.69 (1), Stats., interpreting ss. 285.11 (6), 285.60 (2g) and (3), 285.61 and 285.62, Stats., the Department of Natural Resources will hold public hearings on revisions to chs. NR 400, 406, 407 and 410, Wis. Adm. Code, relating to implementing general and registration air permit programs required by 2003 Wisconsin Act 118. The State Implementation Plan developed under s. 285.11 (6), Stats., will also be revised. The proposed rule revision establishes criteria and procedures for the issuance of general and registration air permits. These rules are intended to provide industry and the Department with a streamlined approach to permitting low emitting sources or categories of similar sources. Sources that are eligible for and which choose to take advantage of a general or registration permit would complete a simplified permit application form. General and registration permits would already have been completed by the Department for the targeted sources or source categories using permit language that is standard for the sources to be covered by the permit. This process will provide greater certainty, flexibility and timeliness to the permitting process.

The proposed rule establishes the general framework for these permits by setting implementation criteria. Specific permit criteria will be developed during permit preparation of sources that could be regulated by registration or general permits include those that have actual emissions significantly lower than federal major source thresholds, nonmetallic mineral processing plants, asphalt plants, small natural gas fired generators, digestors, small heating units, printing presses and hospital sterilization equipment.

Also included in this proposed rule is a minor change to clarify the permit exemption criteria for grain processing and grain storage facilities. This clarification is necessary to ensure that column dryers and rack dryers are included in the exemption criteria, as was intended in the original rule development. Included in this package as well is a minor technical change to provide correct references to the recently updated ch. NR 445 which was inadvertently omitted in the processing of that rule package.

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at:
[e-mail] or by calling [phone].

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 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.

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

Thursday, October 28, 2004 at 3:00 p.m.
Room 511, GEF #2
101 South Webster Street
Madison

Wednesday, November 3, 2004 at 1:00 p.m.
Room 141, DNR SE Region Hdqrs.
2300 N. Dr. Martin Luther King Jr., Drive
Milwaukee

Thursday, November 4, 2004 at 1:00 p.m.
Schmeekle Room, UW-Stevens Point
2419 North Point Drive
Stevens Point