Rule-making notices
Notice of Hearings
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection announces that it will hold public hearings on a proposed rule relating to nutrient management on farms (ATCP 50). The department will hold the hearings at the times and places shown below. The department invites the public to attend the hearings and comment on the proposed rule. The department will manage oral testimony to ensure that everyone has an opportunity to speak. These hearings will be held in conjunction with hearings on a rule related to livestock facility siting (ATCP 51). DATCP has issued a separate hearing notice related to the livestock facility siting rule.
Following the public hearing, the hearing record will remain open until April 7, 2005, for additional written comments. Written comments should be sent to the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management attention Sue Porter, 2811 Agriculture Drive, P.O. Box 8911, Madison WI 53708. Written comments can be submitted via email to
sue.porter@datcp.state.wi.us.
You may obtain a free copy of the proposed rule and supporting documents such as the environmental assessment, by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling (608) 224-4605 or emailing
sue.porter@datcp.state.wi.us. Copies will also be available at the hearings. To view the proposed rule online, go to:
Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by February 28, 2005, by writing to Sue Porter, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone (608) 224-4605. Alternatively, you may contact the Department TDD at (608) 224-5058. Handicap access is available at the hearings.
Hearings with location information:
Date: Monday, March 14, 2005
Location: Fort Community Credit Union
100 N. Main St.
Jefferson, WI 53549
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Date: Tuesday, March 15, 2005
Location: Heidel House
643 Illinois Ave
Green Lake, WI 54941
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Date: Thursday, March 17, 2005
Location: Ramada White House
1450 Veterans Drive
Richland Center, WI 53581
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Date: Tuesday, March 22, 2005
Location: UW-Manitowoc Center
705 Viebahn St.
Manitowoc, WI 54220
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Date: Wednesday, March 23, 2005
Location: Northcentral Technical College
1000 W. Campus Dr.
Wausau, WI 54401
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Date: Thursday, March 24, 2005
Location: Chippewa Valley Technical College
620 W. Clairemont Ave.
Eau Claire, WI 54701
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (“DATCP") regulates plant nutrients to maintain and improve water quality. DATCP proposes to amend the current nutrient management rules for farms. Current rules are based on nitrogen, not phosphorus. This rule would incorporate updated federal standards based on nitrogen and phosphorus. Phosphorus is a key nonpoint source pollutant, and phosphorus levels in soil are increasing due to excessive phosphorus applications.
Current nutrient management rules apply to all farms, not just livestock operations. Current rules are scheduled to take effect in 2005 in some watersheds, and 2008 elsewhere. However, enforcement of current rules is contingent on cost-sharing (per current state law), so the availability of cost-share funding will limit actual implementation.
By adding a phosphorus standard to current nutrient management rules, this rule will increase compliance costs for farmers. This rule will have the greatest impact on livestock operators, who may incur additional costs related to the disposal of manure (which provides more phosphorus than nitrogen, compared to crop needs). However, this rule does not change current rule effective dates or cost-sharing requirements.
DATCP has general authority to adopt rules interpreting statutes under its jurisdiction (see s.
93.07 (1), Stats.). DATCP is specifically authorized to adopt farm conservation standards, including standards for nutrient management on farms (see ss.
92.05 (3) (k) and
281.16 (3) (b), Stats.).
Background
Under current DATCP rules (ch.
ATCP 50, Wis. Adm. Code), all farmers who apply manure or commercial fertilizer to cropland (not just livestock operators) must have nutrient management plans. This requirement takes effect on January 1, 2005 in certain watersheds and January 1, 2008 elsewhere. Under current rules, enforcement of nutrient management requirements is contingent on cost-sharing.
Under current DATCP nutrient management rules, a nutrient management plan must comply with all of the following requirements:
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It must be prepared or approved by a qualified nutrient management planner. A farmer may prepare his or her own plan if the farmer has completed a DATCP-approved training course within the preceding 4 years, or is otherwise qualified under current rules.
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It must identify the lands on which the operator will apply manure and other nutrients.
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It must be based on soil tests that determine the nutrient needs of the affected cropland. A soil test laboratory, certified by DATCP, must conduct the soil tests.
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It may not call for nutrient applications in excess of amounts needed to achieve crop fertility levels recommended by the University of Wisconsin (there are limited exceptions).
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It must comply with nutrient management standards published by the Natural Resource Conservation Service of the United States Department of Agriculture (“NRCS").
Rule Content
This rule modifies current DATCP nutrient management rules as follows:
Updated Federal Standard
Current DATCP rules incorporate an outdated version (March, 1999) of the NRCS nutrient management standard. This rule incorporates an updated NRCS standard. A nutrient management plan (if required) must adhere to the following provisions in the new standard (many, but not all, of these provisions already apply under the current standard):
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The nutrient management plan must consider all primary nutrients – nitrogen, phosphorus, and potassium. The older NRCS standard focused on nitrogen rather than phosphorus and potassium. Phosphorus is a key nonpoint pollutant, and has been applied in excessive amounts (as reflected in rising average soil-test phosphorus levels in Wisconsin). The new standard will limit excessive phosphorus applications.
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Nutrient applications may not exceed the amounts needed to achieve soil fertility levels recommended by the University of Wisconsin for crops in the farmer's rotation (there are some exceptions). These recommendations are designed to achieve optimal economic returns for farmers. Phosphorus and potassium needs are generally determined over a crop rotation, so that some buildup of these nutrients is permitted in anticipation of future crop needs during the rotation.
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The nutrient management plan must consider all nutrient sources, including existing nutrients in the soil, manure applications, fertilizer applications, and nitrogen from legumes. The plan must account for relevant limitations on nutrient applications -- for example, on frozen land, near water bodies, or on highly eroding fields (see below).
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Nutrient calculations must take into account the amount and timing of nutrient applications from all sources.
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Soil tests must be used to determine existing soil fertility levels (soil tests must be not more than 4 years old).
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Nutrient management plans must be updated annually (to account for relevant changes in cropping patterns, land base, nutrient applications, soil test results, etc.). Each annual update must document and consider relevant cropping patterns and nutrient applications from the preceding year.
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Manure nutrient content may be determined by laboratory analysis or from standard “book values" specified in the NRCS standard. Labs performing manure analyses must meet standards specified in the rule.
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Nutrients may not run off the field during application.
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Nutrients may not be spread in certain areas, including the following:
- Fields eroding in excess of “T-value" levels (the standard specifies acceptable methods for calculating erosion rates).
- Surface water areas, or areas of established concentrated flow.
- Permanent non-harvested vegetative buffers or wetlands.
- Areas within 50 feet of drinking water wells.
- Areas within 200 feet up-slope of direct conduits to groundwater (such as wells, sinkholes, fractured bedrock, tile inlets or mine openings), unless the nutrients are effectively incorporated within 72 hours.
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Nutrients may not be applied to frozen or snow-covered land within 1,000 feet of a navigable lake or within 300 feet of a navigable stream.
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Liquid manure may not be applied to frozen or snow-covered land at a rate of more than 7,000 gallons per acre.
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Manure may not be applied to frozen or snow-covered land at a rate that provides more phosphorus than will be used by crops in the next growing season.
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Manure may not be applied to frozen or snow-covered land that has a slope greater than 9% (12% if contour-cropped).
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Commercial fertilizer may not be applied to frozen or snow-covered land, except on pasture or surfaces planted in winter grains.
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At least one of the following practices must be used when applying nutrients to unfrozen surfaces within 1,000 feet of a navigable lake or within 300 feet of a navigable stream:
- Install or maintain permanent vegetative buffers.
- Maintain 30% crop residue or vegetative cover on the soil surface after application.
- Incorporate nutrients within 72 hours, leaving adequate residue so that erosion does not exceed “T-value."
- Establish cover crops promptly following application.
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Liquid manure applications (less than 12% solids) to unfrozen land within 1,000 feet of a navigable lake or 300 feet of a navigable stream may not exceed rates specified in the rule.
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In order to minimize nitrogen loss to groundwater in certain sensitive areas, most crop nitrogen must be applied to those areas after the crop is established in the spring. This applies to areas with coarse soils, areas with less than 20 inches to bedrock or 12 inches to water table, and areas within 1000 feet of a municipal well.
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In order to minimize phosphorus losses to surface water, a farmer must use one of the following strategies (and establish perennial vegetative cover where there are recurring gullies):
- Maintain a phosphorus index, calculated according to the Wisconsin phosphorus index model, at or below a level of 6. Stop phosphorus applications to fields that exceed that index level, unless UW recommendations call for additional phosphorus applications (based on soil tests and crop needs).
- Regulate phosphorus applications based on soil tests. Forego or limit phosphorus applications as necessary, based on soil test levels and phosphorus removal by relevant crops (the standard specifies application limits based on soil test levels).
Excess Nutrient Applications
Under current DATCP rules, a nutrient management plan may not recommend nutrient applications that exceed the amounts needed to achieve fertility levels recommended by the university of Wisconsin for relevant crops. However the current rules allow certain exceptions.
One current exception allows for excess soil nutrient values caused by manure applications in prior years. This rule limits that exception, so that it only applies to manure applications in the year immediately preceding implementation of the nutrient management plan.
The current rules also permit excess nutrient applications for the following reasons:
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The farmer applies only organic nutrients (such as manure).
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Excess nutrients from organic nutrient applications will be used later in the planned crop rotation.
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Fields with corn following corn receive conservation tillage with greater than 50% residue after planting.
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Starter fertilizer is properly applied to row crops.
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The crop is irrigated.
This rule eliminates these exceptions, because these conditions are more precisely addressed in the (updated) NRCS technical guide nutrient management standard 590 (incorporated in this rule). This rule, like the current rules, permits excess nutrient applications based on special agronomic conditions documented by the nutrient management planner.
Cost-Sharing and Initial Applicability Not Affected
This rule does not change the previously-established effective dates for DATCP nutrient management rules (2005 in some watersheds, and 2008 elsewhere), nor does it change current cost-sharing requirements (enforcement of nutrient management standards is normally contingent on cost-sharing). Those effective dates and cost-sharing provisions still apply under this rule.
Environmental Impact
This rule will protect the environment by preventing excess nutrient applications that can result in nonpoint source pollution of surface water and groundwater. Nonpoint source pollution from farms has a major impact on surface water and groundwater quality.
Fiscal Impact
This rule will not have a major fiscal impact on DATCP or local units of government. This rule will change applicable standards for nutrient management plans, but will not increase the number of nutrient management plans required. Enforcement of this rule is generally contingent on cost-sharing. DATCP estimates that approximately $25 million in additional cost-share funding would be needed each year in order to fully implement this rule within 10 years. This rule does not mandate additional state or local review of nutrient management plans (beyond what already exists). County conservation staff currently review and monitor nutrient management plans as necessary, on farms that are required to have those plans.
DATCP and county land conservation staff will need to become familiar with the new standards. Staff will need to provide information and education about the new standards, and respond to questions from farmers and others. DATCP will undertake these new responsibilities with existing staff. DATCP estimates that counties will likewise be able to implement the revised standards with existing staff. A complete fiscal estimate may be obtained by calling (608) 224-4605 or emailing
sue.porter@datcp.state.wi.us.
Business Impact
This rule will have a substantial impact on agricultural producers and other businesses.
Agricultural Producers
To the extent that it is implemented, this rule will increase costs for livestock operators and crop producers who are required to implement nutrient management plans. However, rule implementation is contingent on cost-sharing. Actual implementation will depend on the availability of cost-share funds. Without cost-sharing, most agricultural producers will not be obligated to comply.
This rule will not increase the number of nutrient management plans required, but will affect the content of the plans. It will also affect the farming practices needed to comply. This rule will have the greatest impact on livestock operations. It will have less impact on non-livestock crop producers. For livestock operations, the impact is primarily related to new phosphorus management requirements (current standards are based primarily on nitrogen, not phosphorus).
Manure generally provides higher amounts of phosphorus than nitrogen, compared to typical crop needs. So, livestock operators may need more acreage for manure disposal, to avoid excessive phosphorus applications. Costs will vary widely by livestock species, size of livestock operation, geographic location, cropping patterns, current nutrient content of soil, and availability of acreage for manure disposal. Non-livestock crop producers will be less affected, and may actually reduce their fertilizer costs by avoiding excessive phosphorus applications.
DATCP has estimated the costs to implement the new phosphorus standard, assuming that the standard is fully implemented (this will require cost-share funding that is not currently available). The estimate represents the annual incremental cost, over and above the cost to implement the existing (nitrogen-based) standard. DATCP estimates the statewide incremental cost, by livestock sector, as follows (estimation method described in attached business impact assessment):
Dairy: $1.5 million
Beef: $1.5 million
Swine: $0.5 million
Poultry: $2.8 million
Actual costs to the industry will be much less, because compliance is contingent on cost-sharing and cost-share funds are limited. Many farmers may never be required to comply. Cost-share payments will offset part of the cost for many who comply.
Under current rules, a cost-share offer must cover 70% of the cost to conduct soil tests and prepare a nutrient management plan (90% if there is financial hardship), or $7 per cropland acre, whichever amount is greater (the farmer chooses). The percentage rate applies only to costs of writing a nutrient management plan and performing soil tests (not manure hauling, etc.). The flat-rate payment ($7 per acre) applies regardless of actual costs.
Cost-share payments (whether flat-rate or percentage) are limited to 4 years. After that, the farmer assumes the full cost of compliance. Once a farmer achieves compliance, the farmer must maintain compliance regardless of cost-sharing. If a farmer falls out of compliance, the farmer is not eligible for cost-sharing to regain compliance.
In cost-share transactions to date, nearly all farmers have chosen the flat-rate ($7 per acre) payment. If farmers need additional acres to landspread manure (as many will under a phosphorus standard), the total cost-share payment will increase accordingly (even if the rate per acre does not change). The limited availability of state cost-share funds will limit actual enforcement of nutrient management requirements. Available funds will be allocated among fewer operations.
Some livestock operators must comply with nutrient management requirements under other applicable law, regardless of cost-sharing (and regardless of whether DATCP nutrient management rules would otherwise apply prior to 2008). These include:
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Operators who need a point source pollution discharge permit under NR 243 (mainly operations over 1,000 animal units).
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Operators who need a permit, under a local manure storage ordinance, for a voluntarily constructed manure storage facility (see current ATCP 50.54 (2) (b)).
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Operators who need a local permit for a new or expanded livestock facility with 500 or more “animal units," according to DATCP's proposed livestock facility siting rule (not this rule).
For more information contact DATCP small business regulatory coordinator Dennis Fay at (608) 224-5031 or email at
dennis.fay@datcp.state.wi.us.
Federal Regulations
The federal government does not regulate nutrient management on farms except that, under the federal Clean Water Act, certain concentrated animal feeding operations are subject to federal regulation as water pollution “point sources." DNR regulates these operations by permit, under authority delegated from the United States Environmental Protection Agency (EPA).
NRCS is proposing updated nutrient management standards based on phosphorus as well as nitrogen. NRCS does not enforce its standards as mandatory standards, except for operations that receive cost-share funding from NRCS. However, DNR and DATCP have incorporated these federal standards in state nutrient management rules. DATCP is proposing to incorporate updated NRCS standards in this rule.
Adjacent State Regulations
Surrounding states regulate nutrient management in a variety of different ways. Most of the states regulate phosphorus, as well as nitrogen. A description of other state programs is found in the plain language analysis that accompanies this rule.
Businesses Affected
Those effected are small businesses, as defined by s.
227.114 (1) (a), Stats.
This rule will have a substantial impact on agricultural producers as discussed above in the Business Impact section. In addition, this rule may increase farmer demand for services provided by the following businesses:
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Nutrient management planners.
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Soil and manure testing laboratories.
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Manure haulers.
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Construction contractors and conservation planners (practices to reduce soil erosion).
This rule will likely reduce sales of commercial phosphorus fertilizers, but may increase sales of commercial nitrogen fertilizer to meet crop needs (where manure applications are curtailed because of phosphorus constraints).
Reporting, Recordkeeping and Other Procedures Required for Compliance
Reporting and recordkeeping requirements of the NRCS nutrient management standard are stated above in the Rule Content section. Current DATCP rules incorporate an outdated version (March, 1999) of the NRCS nutrient management standard. This rule incorporates an updated NRCS standard. A nutrient management plan (if required) must adhere to the following provisions in the new standard (many, but not all, of these provisions already apply under the current standard).
The updated NRCS standard requires field features to be identified on maps or aerial photos in the plan. These features include field boundary, soil type, field identification, areas prohibited from receiving nutrients such as surface water, grassed waterways, sinkholes, land where vegetation is not removed, areas within 50 feet of a potable drinking well, and fields eroding at a rate exceeding tolerable soil loss (T). Other field features to be identified on maps are areas restricted from receiving winter nutrient applications. These areas are slopes greater than 12% and slopes greater than 9% that are not contoured, surface water quality management areas (land within 1,000 feet of lakes and ponds or within 300 feet of perennial streams), and areas within 200 feet upslope of direct conduits to groundwater.
All farmers required to have a nutrient management plan, will need to maintain planned and applied records for each fields nutrient application rates, timing, and methods of all forms of N, P, and K listed in the plan and consistent with UW Publication A 2809, Soil Test Recommendations for Field, Vegetable and Fruit Crops, and the 590 standard. This procedure is already required under the current rule.
A single phosphorus assessment of either the Phosphorus Index or soil test phosphorus management strategy must be uniformly applied to all fields within a tract.
Professional Skills Required to Comply
The proposed changes affect how nutrients, particularly phosphorus can be applied to fields. This rule may require moving manure to fields testing lower in phosphorus. However, phosphorus applications can still occur on fields testing excessively high for phosphorus if they are 25% less than the crop rotation's phosphorus removal over a 4 year period. Because nutrient management planning involves crop rotations, crop nutrient removal, and the predicted soil erosion levels of these crop rotations, nutrient management planners need an understanding of conservation planning and soil fertility management.
While anyone can develop nutrient management plans if they are knowledgeable, adoption of nutrient management planning on individual farms will in some cases require assistance. Training for producers, agronomists, and conservation staff has been provided by University of Wisconsin Extension personnel and agency staff in the past. In recent years, many farmers have been using crop consultants to plan and recommend nutrient applications. The department anticipates these information sources will continue to be used as the primary sources of information for crop producers.
Notice of Hearings
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (“DATCP") announces that it will hold public hearings on a proposed rule (ATCP 51) to implement Wisconsin's Livestock Facility Siting Law (s.
93.90, Stats.). DATCP will hold the hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on this proposed rule. DATCP will manage oral testimony to ensure that everyone has an opportunity to speak.
DATCP will hold these hearings in conjunction with hearings on another rule (ATCP 50), relating to nutrient management. This livestock siting rule (ATCP 51) incorporates the same nutrient management standards proposed in that other rule. DATCP has issued a separate notice of hearing on the nutrient management rule.
Following the public hearing, the hearing record will remain open until April 7, 2005, for additional written comments. Written comments should be sent to the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management attention Dilip Patel, 2811 Agriculture Drive, P.O. Box 8911, Madison WI 53708. Written comments can be submitted via email to
Dilip.Patel@datcp.state.wi.us.
You may obtain a free copy of the proposed rule, and supporting documents such the environmental assessment, by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling (608) 224-4608 or 224-4610 or emailing
Dilip.Patel@datcp.state.wi.us or
Richard.Castelnuovo@datcp.state.wi.us. Copies will also be available at the hearings. To view this proposed rule online, go to:
Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by February 28, 2005, by writing to Dilip Patel, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone (608) 224-4610. Alternatively, you may contact the Department TDD at (608) 224-5058. Handicap access is available at the hearings.
Hearings with location information:
Date: Monday, March 14, 2005
Location: Fort Community Credit Union
100 N. Main St.
Jefferson, WI 53549
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Date: Tuesday, March 15, 2005
Location: Heidel House Resort
643 Illinois Avenue
Green Lake, WI 54941
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Date: Thursday, March 17, 2005
Location: Ramada White House
1450 Veterans Dr.
Hwy 14 East & Veterans Dr.
Richland Center, 53581
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Date: Tuesday, March 22, 2005
Location: UW Manitowoc Center
705 Viebahn Street
Manitowoc , WI 54220
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Date: Wednesday, March 23, 2005
Location: Northcentral Technical College
1000 W. Campus Drive
Wausau, WI 54401
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Date: Thursday, March 24, 2005
Location: Chippewa Valley Technical College
620 West Clairemont Avenue
Eau Claire, WI 54701
Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
Wisconsin's Livestock Facility Siting Law (s.
93.90, Stats.) is designed to facilitate the siting of new and expanded livestock facilities in Wisconsin. The law establishes a general statewide framework for local approval of new or expanded livestock facilities. The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes this rule to implement the Livestock Facility Siting Law.
Summary of Rule Contents
Livestock Facilities Covered by This Rule
This rule applies only to new or expanded livestock facilities that require local approval, and only if those facilities will have 500 or more “animal units" (or will exceed a lower threshold incorporated in a local zoning ordinance prior to July 19, 2003). DATCP estimates that this rule will apply to approximately 50-70 local siting applications each year.
This rule applies only to facilities that keep
cattle, swine, poultry, sheep or goats. This rule does not apply to facilities that keep only horses, farm-raised deer, fish, captive game birds, ratites (such as ostriches or emus), camelids (such as llamas or alpacas) or mink.
Application for Local Approval
To obtain local approval, a livestock operator must complete the application form and worksheets attached to this rule. The application form and worksheets elicit key information to show compliance with the siting standards in this rule.
If an application contains the information required by this rule, the local government must approve the proposed livestock facility unless the local government finds, based on other clear and convincing evidence in the local record, that the facility fails to meet the siting standards in this rule. By spelling out clear application requirements and approval standards, this rule adds certainty to the application and decision-making process.
An application for local approval must include all of the following:
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Applicant information.
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A description of the proposed livestock facility, including the types of livestock and the number of “animal units" for which the applicant seeks approval. The applicant must calculate animal units according to an animal units worksheet (worksheet 1). The application must show the maximum number of “animal units" the applicant proposes to keep on at least 90 days during any 12-month period. If the local government approves the proposed livestock facility, this is the number of “animal units" approved (the operator may not exceed this number without further approval).
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An area map. The area map must show a 2-mile radius around the proposed facility (with topographic lines at 10-foot elevation intervals). The map must show relevant features, including current and proposed livestock structures.
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A site map. The site map must show a 1,000 foot radius around the proposed facility (with topographic lines at 2-foot elevation intervals for the area within 300 feet of livestock structures). The map must show relevant features, including current and proposed livestock structures. The applicant must certify that livestock structures will comply with applicable property line and water quality setbacks in this rule.
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The following worksheets:
- Animal units (worksheet 1).
- Odor management (worksheet 2).
- Waste and nutrient management (worksheet 3).
- Waste storage facilities (worksheet 4).
- Runoff management (worksheet 5).
- Mortality management (worksheet 6).
An applicant who holds a WPDES permit from DNR for the same proposed livestock facility (and the same or greater number of animal units) is not required to submit worksheets 3, 4 and 5, but must submit worksheets 1, 2 and 6.
The application form includes a notice of other laws that may apply to livestock operations. The notice makes the applicant aware of these laws. But except as specifically provided in this rule, the listed laws are not used as standards for local siting decisions (other compliance and enforcement mechanisms apply).
A local government may not alter the application form (except for limited purposes specified in this rule). A local government may charge a reasonable application fee, not to exceed $500, to offset its costs to review and process the application. A local government may not charge any other fee, or require the applicant to post any bond or security with the local government.
Property Line Setbacks
New livestock structures, and livestock structures enlarged by more than 20%, must comply with property line setbacks under this rule. The following setbacks apply, unless a local ordinance specifies shorter setbacks:
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The structures must be located at least 100 feet from property lines and roads.
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The structures must be located at least 200 feet from property lines other than roads, and 150 feet from roads, if the livestock facility will have 1,000 or more animal units.
Water Quality Setbacks
This rule does not create new water quality setbacks, but requires compliance with applicable shoreland zoning ordinances, floodplain zoning ordinances and well code.
Odor Management; Livestock Structures
The following livestock facilities must have a positive “adjusted odor index," calculated according to the odor management worksheet (worksheet 2):
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A new livestock facility with more than 500 “animal units."
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An expanded livestock facility with more than 1,000 “animal units."
The “adjusted odor index" indicates the likelihood of objectionable odors from livestock structures, based on:
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The type of livestock, and the nature, size and location of livestock structures.
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Distances from high odor livestock structures (such as waste storage facilities) to non-consenting neighbors.
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Odor management and good neighbor practices the applicant will implement.
An applicant can improve the “odor index" score by implementing odor management practices (to reduce odors) and good neighbor practices (which do not reduce odor but may reduce conflicts with neighbors). A local government may also grant some discretionary credit, if it wishes to do so.
Odor Management; Land Application of Stored, Untreated Liquid Manure
A livestock operator must use at least one of the following practices when applying untreated liquid manure that has been stored for at least 7 days:
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Inject the manure directly into the soil.
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Incorporate the manure into the soil within 48 hours (or as soon as weather permits).
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Cover the manure with vegetative residue within 48 hours (or as soon as weather permits).
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Apply the manure at least 500 feet from the nearest “non-affiliated residence" and from the nearest “high public use area" (distances do not apply if owner consents in advance to manure application).
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Apply the manure during only 2 weeks of the year (at least 500 feet from the nearest “high public use area)."
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Comply with an odor management plan approved by the local government (operator proposes plan). A plan might include, for example, advance notice to neighbors or avoiding applications at sensitive times.
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Comply with less restrictive manure application odor setbacks enacted by local ordinance.
This rule does not regulate application of fresh manure (stored less than 7 days), solid or heavily bedded manure, or manure that is effectively treated to reduce odor (such as by anaerobic digestion or substantial dilution).
Waste and Nutrient Management
A livestock operator must manage manure and other waste responsibly, according to standards in this rule. A waste and nutrient management worksheet (worksheet 3) must accompany every application for local approval. The completed worksheet must include all of the following:
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The types and amounts of manure and other waste that the livestock facility will generate.
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Waste storage methods, duration and capacity.
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Final waste disposition (by landspreading or other means).
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Acreage available for landspreading (include map).
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A nutrient management checklist, signed by a qualified nutrient management planner. This checklist is
not required for a livestock facility with fewer than 500 “animal units" if the operator meets a minimum ratio of land to “animal units."
Waste Storage Facilities
Waste storage facilities must meet standards in this rule, to provide reasonable assurance against leakage or structural failure. A waste storage facility worksheet (worksheet 4), signed by a registered professional engineer or certified agricultural engineering practitioner, must accompany an application for local approval.
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New or substantially altered waste storage facilities lots must meet current NRCS construction standards.
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Existing waste storage facilities need not meet current construction standards, but must meet standards to assure against leakage and structural failure.
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Existing facilities waste storage facilities lots must meet be closed according to current NRCS standards.
Runoff Management
To qualify for local approval, a livestock facility must comply with standards to prevent polluted runoff. A runoff management worksheet (worksheet 5) must accompany the application for local approval. A registered professional engineer or certified agricultural engineering practitioner must sign the worksheet.
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New or substantially altered animal lots must meet current NRCS construction standards.
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Existing animal lots need not meet current construction standards, but must meet basic phosphorus runoff standards.
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Feed storage must be managed to prevent significant discharge of leachate or polluted runoff. Special requirements apply to storage of high moisture feed (65% or higher moisture content).
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Runoff from a livestock facility must be diverted from contact with animal lots, manure storage facilities, feed storage areas and manure piles within 1,000 feet of a navigable lake or 300 feet of a navigable stream.
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A livestock facility must be designed, constructed and maintained to prevent overflow of manure storage facilities.
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A livestock facility may not have any unconfined manure piles within 1,000 feet of a navigable lake or within 300 feet of a navigable stream.
•
A livestock facility may not have unrestricted livestock access to waters of the state, if that access will prevent adequate vegetative cover on banks adjoining the water.
•
If the construction of a new or expanded livestock facility will disturb more than one acre of land, the operator must have a construction site erosion control plan (per current DNR rules).
Mortality Management
A mortality management worksheet (worksheet 6) must accompany an application for local approval. The worksheet must describe the operator's plan for disposing of livestock that die at the livestock facility. This rule does not regulate the method of disposal (other laws may apply).
Local Decision
A local government must grant or deny an application within 90 days after it receives a complete application. If the application complies with this rule, the local government must approve the application unless the local government finds, based on other clear and convincing evidence documented in the local record, that the proposed livestock facility fails to meet the standards in this rule. The local government must issue its decision in writing. The decision must be based on written findings of fact included in the decision. The findings must be supported by evidence in the record. The local government must keep a decision-making record.
Under the Livestock Facility Siting Law, an “aggrieved person" may appeal a local decision to the state Livestock Facility Siting Review Board. The Board will review the local decision based on the local record (the Board will not hold a new hearing or collect additional evidence).
Environmental Impact
This rule will protect the environment by establishing clear environmental protection standards for new and expanded livestock facilities that require local approval. It will protect neighboring land uses by establishing reasonable odor management standards and property line setbacks. It will protect surface water and groundwater quality by incorporating existing water quality setbacks, and by establishing reasonable standards related to waste management, waste storage, nutrient management and runoff control. This proposed rule will ensure that applicants for local approval are aware of other environmental laws that may apply, even though those laws are not incorporated as standards for local approval. A complete environmental assessment is available from DATCP.
Fiscal Impact
This proposed rule will have a significant fiscal impact on DATCP and local units of government. DATCP will incur an estimated additional cost of $155,000 annually to administer the Livestock Facility Siting Review Board and carry out other duties. Local governments that require local approval may incur a cost of $600 to $1,500 per approval. Local governments may charge an application fee of up to $500 to offset costs to review and process an application. If there are 50-70 local approvals per year, aggregate local costs for all local governments may range from $5,000 to $70,000 annually. This cost will be offset by savings related to more orderly, less contentious, approval proceedings. A complete fiscal estimate is available from DATCP.
Business Impact
This rule will have a significant impact on livestock businesses in this state. This rule will facilitate the orderly growth and modernization of Wisconsin's critical livestock industry by providing a clearer, more uniform, more objective and more predictable local approval process.
This rule directly affects only a small number of livestock operators – those who voluntarily choose to build new or expanded livestock facilities in jurisdictions that require local approval. The affected facilities will typically have over 500 “animal units" (some smaller facilities may be affected, in local jurisdictions that had lower permit thresholds prior to July 19, 2003).
DATCP estimates that this rule will directly affect only about 50-70 livestock facilities per year. But the rule will have a significant impact in those cases. It will also have a long-term, indirect impact on the growth and development of the state's livestock industry as a whole. The rule will facilitate more orderly planning, more appropriate siting choices, more predictability for livestock operators and their lenders, and more efficient and environmentally sustainable industry development.
Prior to the Livestock Facility Siting Law, some individual livestock operators spent hundreds of thousands of dollars on unsuccessful applications for local siting approval. When local approval was denied, the operators lost income opportunities. Other operators, though ultimately successful, incurred extraordinary (and often unnecessary) costs and delays.
Contentious local proceedings have exacted a heavy emotional toll on livestock operators and their families, and harmed community relations. The unpredictability of local approval has discouraged lending and capital investment.
New and expanding operations will need to comply with regulations spelled out in this rule. This may add costs for some new or expanding operations, but will also save costs related to local siting disputes and litigation. Operators will be able to evaluate compliance needs before applying for local approval, and will be able to plan their investments accordingly.
DATCP has developed preliminary cost estimates for livestock facilities directly affected by this rule. DATCP estimates the following average cost (or savings) range per siting, by livestock facility size category:
Under 500 “animal units:" ($15,500 savings) to $18,500
500 to 1,000 “animal units:" ($46,150 savings) to $48,200
Over 1,000 “animal units:" ($163,590 savings) to $159,000
Based on reports of livestock siting disputes prior to the Livestock Facility Siting Law, DATCP believes that the net costs of this rule may actually be much lower, and that savings may actually be much higher. Net costs may also be offset, in some cases, by government cost-sharing grants. An applicant for local approval is not ordinarily entitled to cost-sharing for conservation practices needed to comply with this rule. However a political subdivision may provide cost-sharing if it wishes.
This rule affects local approval of livestock facilities that will have 500 or more “animal units" (or that will exceed a lower threshold established by local zoning ordinance prior to July 19, 2003). Many of these operators are “small businesses" as defined in s.
227.114 (1), Stats.
This rule will have a significant economic impact on affected small businesses, and is therefore subject to the delayed small business effective date provision in s.
227.22 (2) (e), Stats. That provision automatically delays a rule's applicability to small businesses by 2 months, compared to the effective date for other businesses. A complete business impact analysis, including a small business analysis (“initial regulatory flexibility analysis"), is available from DATCP.
Federal Regulations
This proposed rule addresses local regulation of livestock facility siting. There are no federal regulations that address this topic directly. But the following federal programs have an impact on livestock facilities in this state: Federal Clean Water Act, Federal Clean Air Act, NRCS nutrient management standards, federal conservation incentives.
Regulation in Surrounding States
Among states bordering Wisconsin, there is an apparent trend toward state regulation that pre-empts or standardizes local regulation. State standards can address important concerns such as runoff control and odor management, while providing a more uniform and predictable regulatory environment for farm businesses. Illinois, Michigan and Iowa have established state frameworks for approval of new and expanded livestock facilities, while Minnesota is re-evaluating the state's role in siting decisions.
Notice of Hearing
Commerce
(Credentials, etc., Ch.
Comm 5)
NOTICE IS HEREBY GIVEN that pursuant to ss.
101.02 (1) and
(15) (h) to
(j), and
145.14, Stats., the Department of Commerce will hold a public hearing on proposed rules under chapter Comm 5, relating to welder, electrician and plumber credentials.
The public hearing will be held as follows:
Monday, February 28, 2005 at 1:00 p.m.
Room 3B, 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 11, 2005, 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 accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call (608) 266-8741 or (608) 264-8777 (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.
Analysis of Proposed Rules
General Summary
Chapter
Comm 5 of the Wisconsin Administrative Code contains the Department's rules for the issuance and renewal of numerous credentials which businesses and individuals are either mandated or permitted to obtain. These credentials are licenses, certifications and registrations that relate to activities associated with the construction and inspection of buildings and structures or specific components and elements that serve buildings and structures.
The proposed rules consist of revisions in chapter Comm 5 in order to address some administrative inconsistencies and oversights that have occurred since the last major update of chapter Comm 5. The time period during which a certified welder may perform the welding procedures for which the welder is certified is being increased from 3 years to 4 years. Likewise, the time period for maintaining the records of those individuals who passed a structural welding test is being increased from 4 years to 5 years. The proposal deletes the rule relating to advertising as certified electrical contractors or electricians. The proposed rules also include a requirement for certain master plumbers-restricted appliance to complete an educational course on multi-purpose piping systems that they are allowed to install.
Federal Comparison
The proposed rules address administrative issues unique to the department's rules. There are no existing or proposed federal regulations that address the activities to be regulated by the proposed rules.
State Comparison
The proposed rules address administrative issues unique to the department's rules. There are no similar rules in the states of Illinois, Iowa, Michigan and Minnesota.
The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at
www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at
rward@commerce.state.wi.us, or at telephone (608) 266-8741 or (608) 264-8777 (TTY). Copies will also be available at the public hearing.
Environmental Assessment
Notice is hereby given that the Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.
Initial Regulatory Flexibility Analysis
1. Types of small businesses that will be affected by the rules.
The rules will affect any businesses that employ certified structural welders or conduct structural welding tests. The rules will also affect any businesses that employ licensed master plumbers-restricted appliance who initially obtained their licenses prior to January 1, 2002.
2. Reporting, bookkeeping and other procedures required for compliance with the rules.
The rules require the records of those individuals who passed a structural welding qualifying test to be kept for 5 years instead of 4 years.
3. Types of professional skills necessary for compliance with the rules.
There are no types of professional skills necessary for compliance with the proposed rules.
4. Rules have a significant economic impact on small businesses.
No
Fiscal Effect
The Safety and Buildings Division is responsible for administering and enforcing rules relating to protecting public safety and health in public buildings, places of employment and one- and 2-family dwellings. The proposed rules do not contain any changes in the Division's fees charged for administering and enforcing those rules. Also, the proposed rules will not create any additional workload costs. Therefore, the proposed rules will not have any fiscal effect on the Division.
The proposed rules will not have a significant fiscal effect on the private sector.
The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone (608) 267-0297, or Email at
cdunn@commerce.state.wi.us.
Notice of Hearing
Commerce
NOTICE IS HEREBY GIVEN that pursuant to ss.
101.02 (1),
101.63 (1),
101.73 (1) and
101.82, Stats., the Department of Commerce will hold a public hearing on proposed rules under chapter Comm 16, relating to electrical construction.
The public hearing will be held as follows:
Date & Time: Monday, February 28, 2005 at 10:00 a.m.
Location: Room 3B, 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 11, 2005, 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 accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call (608) 266-8741 or (608) 264-8777 (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.
Analysis of Proposed Rules
General Summary
Chapter
Comm 16, Electrical Code, establishes safety and health requirements for the installation of electrical wiring, communication systems and electrical equipment in places of employment, public buildings, dwellings and other premises such as carnivals, parking lots, mines, trenches, manufactured homes and recreational vehicles. The chapter incorporates by reference the National Fire Protection Association (NFPA) standard NFPA 70 – National Electrical Code (NEC). In addition, the chapter includes amendments that clarify or supplement the electrical standards contained in the NEC. Chapter
Comm 16 also establishes rules for the electrical inspection of farms, public buildings and places of employment.
The proposed rules consist of an update of chapter Comm 16, including the incorporation by reference of the 2005 edition of the NEC. The proposed rules do not contain any revisions to the current rules for the electrical inspection of farms, public buildings and places of employment. The majority of the proposed changes are administrative in nature and involve numbering and code location.
Detailed Summary
The following is a summary of the major changes in the proposed rules. [The numbers in brackets indicate where the rule change can be found in the rule draft.]
1. Deleting several Wisconsin amendments to the NEC as a result of changes in the 2005 edition of the NEC. For example, because of changes in NEC 210.52 (E) of the 2005 NEC relating to the location of dwelling unit outdoor outlets, section
Comm 16.22 is being deleted.
2. Deleting the NEC requirement for concealing nonmetallic sheathed cables in non-dwellings of Type III, IV or V construction within walls, floors or ceilings that provide a 15-minute finish rating. [Comm 16.327]
3. Adding 2 new rules to clarify the placement of a generator used as an emergency or legally required power source relative to the utility transformer. [Comm 16.45 (2) and 16.48]
Federal Comparison
There are several existing federal regulations that relate to the installation of electrical wiring and equipment. Some of these regulations require compliance with various editions of the National Electrical Code (NEC). An Internet-based search of the Code of Federal Regulations (CFR) found the following existing federal regulations relating to the activities to be regulated by the rule.
Title
7 CFR Part 1755 – Telecommunications Standards and Specifications for Materials, Equipment and Construction. This regulation in the Department of Agriculture applies to telecommunication wiring and equipment, and requires compliance with the 1993 NEC.
Title
24 CFR Part 3280 – Manufactured Home Construction and Safety Standards. This regulation in the Department of Housing and Urban Development covers electrical systems in manufactured homes, and requires compliance with the 1993 NEC.
Title
29 CFR Part 1910 – Occupational Safety and Health Standards. Subpart S of this regulation in the Department of Labor contains detailed electrical safety requirements that are necessary for the practical safeguarding of employees in their workplaces.
Title
29 CFR Part 1926 – Safety and Health Regulations for Construction. Subpart K of this regulation in the Department of Labor contains detailed electrical safety requirements that are necessary for the practical safeguarding of employees involved in construction work.
Title
30 CFR Part 57 – Safety and Health Standards –- Underground Metal and Nonmetal Mines. Subpart K of this regulation in the Department of Labor contains specific electrical safety requirements for the protection of employees working in underground metal and nonmetal mines.
Title
30 CFR Part 75 – Mandatory Safety and Health Standards –- Underground Coal Mines. Subpart F of this regulation in the Department of Labor contains specific electrical safety requirements for the protection of employees working in underground coal mines.
An Internet-based search of the 2003, 2004 and 2005 issues of the Federal Register found the following proposed regulations relating to the installation of electrical wiring and equipment.
April 5, 2004
Register, 29 CFR Part 1910. The Occupational Safety and Health Administration in the Department of Labor proposed to revise the general industry electrical installation standard found in Subpart S of
29 CFR Part 1910. The requirements in the revised standard draw heavily from the 2002 edition of the NEC.
June 25, 2004
Register, 30 CFR Part 75. The Mine Safety and Health Administration in the Department of Labor proposed to allow the use of low- and medium-voltage diesel-powered electrical generators as an alternative means of powering electrical equipment.
July 16, 2004
Register, 30 CFR Part 75. The Mine Safety and Health Administration in the Department of Labor proposed to establish new electrical safety standards for the installation, use and maintenance of high-voltage continuous mining machines used in underground coal mines.
December 1, 2004
Register, 24 CFR Part 3280. The Department of Housing and Urban Development proposed amendments to the Construction and Safety Standards for manufactured homes by adopting recommendations made to HUD by the Manufactured Housing Consensus Committee. The electrical systems amendments are consistent with the 1996 NEC.
State Comparison
An Internet-based search of adjacent states' rules found the following regulations that include requirements relating to electrical construction.
•
Illinois does not administer a state electrical code.
•
The Iowa Department of Public Safety administers the Iowa Building Code, which adopts the 1996 edition of the National Electrical Code with no amendments.
•
The Michigan Department of Labor and Economic Growth administers the Michigan Construction Code, which adopts the 2002 edition of the National Electrical Code with amendments.
•
The Minnesota Department of Administration, Building Codes and Standards Division, administers the Minnesota State Building Code, which adopts the 2002 edition of the National Electrical Code with no amendments.
Advisory Council
The proposed rules have been developed with the assistance of the Electrical Code Advisory Council. The members of that citizen advisory council are as follows:
Name Representing
Shannon Clark WI Electric Cooperative Assn.
Mark Cook WI Public Service Commission
Terry Fameree International Assn. of Electrical
Inspectors
Robert A. Fass Wisconsin Utilities Association
David Hansen Dept. of Agriculture, Trade &
Consumer Protection
Ronald L. Jahnke NECA, Wisconsin Chapter
Ronald Janikowski International Assn. of Electrical
Inspectors
Norbert Jarzynski Wisconsin State AFL-CIO
Charles L. Johansen Wisconsin Builders Association
Richard Lynes Assoc. Builders & Contractors of WI
Ronald E. Maassen NECA, Milwaukee Chapter
The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at
www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at
rward@commerce.state.wi.us, or at telephone (608) 266-8741 or (608) 264-8777 (TTY). Copies will also be available at the public hearing.
Environmental Analysis
Notice is hereby given that the Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.
Initial Regulatory Flexibility Analysis
1. Types of small businesses that will be affected by the rules.
Any business involved with the installation of electrical wiring, communication systems or electrical equipment will be affected by the rules.
2. Reporting, bookkeeping and other procedures required for compliance with the rules.
There are no 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 professional skills necessary for compliance with the rules.
4. Rules have a significant economic impact on small businesses.
No.
Fiscal Estimate
The Safety and Buildings Division is responsible for administering and enforcing chapter Comm 16. The proposed rules do not contain any changes in the Division's fees charged for administering and enforcing chapter Comm 16. Also, the proposed rules will not create any additional workload costs. Therefore, the proposed rules will not have any fiscal effect on the Division.
Local municipalities may voluntarily enforce chapter Comm 16, and they have the authority to offset any costs by charging appropriate fees.
The proposed rules will not have a significant fiscal effect on the private sector.
The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone (608) 267-0297, or Email at
cdunn@commerce.state.wi.us.
Notice of Hearing
Office of State Employment Relations
NOTICE IS HEREBY GIVEN that pursuant to ss.
230.04 (5), Stats., and interpreting s.
230.04 (1), Stats., the Office of State Employment Relations will hold a Public Hearing at the time and place shown below to consider the creation of permanent rules relating to references to the Compensation Plan, day care providers, the Entry Professional Program, paid leave to vote, continuous service, reinstatement, sick leave credit restoration, annual leave schedules, annual leave options, personal holidays, catastrophic leave, paid leave for bone marrow or organ donation, project compensation, hiring above the minimum and supervisor training.
Date: March 2, 2005
Time: 10:30 A.M. to 11:30 A.M.
Location: Room 4B, 4th Floor
Office of State Employment Relations
101 East Wilson Street
Madison, WI 53703
The hearing will be held jointly with a hearing by the Division of Merit Recruitment and Selection in the Office of State Employment Relations, which has separate rule-making authority and is simultaneously promulgating rules. Please see the separate hearing notice for an analysis of the proposed rule order of the Division of Merit Recruitment and Selection.
The hearing site is accessible to persons with disabilities. If you need an interpreter, materials in alternate format or other accommodations for this meeting, please inform the contact person listed at the end of this notice before the hearing.
Written comments on the rules may be sent to the contact person by 12:00 P.M. noon on March 4, 2005. Written comments will receive the same consideration as written or oral testimony presented at the hearing.
A copy of the rule is available from the contact person listed at the end of this notice, or by going to “Announcements" at
http://oser.state.wi.us.
Analysis Prepared by Office of State Employment Relations
Statutory and Agency Authority
Section
230.04, Stats., charges the Director of the Office of State Employment Relations with effective administration of ch.
230, Stats., and the promulgation of rules related to the performance of the Director's duties.
Section
230.046 (2), Stats., requires appointing authorities to ensure that each classified service supervisor completes a supervisory development program.
Section
230.35 (2r) (b), Stats., allows the Director of the Office of State Employment Relations to establish, by rule, a catastrophic leave program.
Statutes Interpreted:
s.
6.76, relating to paid leave to vote
s.
230.35 (1m), relating to annual leave and continuous service
s.
230.35 (2d), relating to bone marrow and organ donation
s.
230.35 (2r), relating to a catastrophic leave program
There are no related statutes or rules other than those listed above.
Plain Language Analysis of the Rules
The Compensation Plan is referred to in the rules without definition. Therefore, s.
ER 1.02 (5m) should be created to provide that definition.
Compensation administration provisions for nonrepresented employees are now provided in the Compensation Plan. Therefore, the related reference in s.
ER 3.03 (4) should include the Compensation Plan.
Sec. 230.048, Stats., has been repealed. OSER no longer is authorized to have a program for grants to day care providers and an appropriation is no longer provided. Therefore, ch.
ER 4 no longer is necessary.
The use of the Entry Professional Program has been reduced significantly, diminishing the need to provide separate information on it for the annual affirmative action report. Therefore, s.
ER 8.03 no longer is necessary.
In accordance with s.
230.35 (4e), Stats., employees
shall be given paid leave to vote if the only time they can vote is during work hours. Section
ER 10.02 (4) says that LTEs can only be paid for hours worked. Changes to s.
ER 10.02 (4) are necessary to make it consistent with the statute.
Effective July 5, 1998, reinstatement eligibility and other eligibility historically tied to reinstatement, was increased from 3 years to 5 years. Because more than five years have passed, a distinction between 3-year eligibility and 5-year eligibility is no longer necessary. Changes to all provisions noting the distinction should now be made to simplify the eligibility to be 5 years in all cases. Therefore, changes to s.
ER 18.02 (2) regarding continuous service and s.
ER 18.03 (5) regarding sick leave credit continuation are necessary.
2003 Wisconsin Act 22 changed s.
230.35 (1m), Stats., to allow employees with FLSA exempt status to receive the accelerated annual leave schedule previously only granted to career executives, attorneys, and certain unclassified positions. Changes to s.
ER 18.02 (3) are necessary to make it consistent with the statute.
The change created by Wisconsin Act 22 also expanded the group of employees whose continuous service is considered uninterrupted under s.
230.35 (1m) (f), Stats., to include those with FLSA exempt status. Changes to s.
ER 18.02 (2) (b) 6., will provide language consistent with the statute.
2003 Wisconsin Act 117 changed s.
230.35 (1p), Stats., to increase the option to bank annual leave hours from 80 hours to 120 hours for those employees at the 216-hour annual leave rate. Changes to s.
ER 18.02 (5) are necessary to make it consistent with the statute.
Section
ER 18.02 (5) also requires proration of annual leave options for nonrepresented employees who have worked less than 2088 hours in a calendar year no matter how eligibility is acquired. Collective bargaining agreements do not have any requirement to prorate for working less than 2088 hours if the eligibility is based on accumulation of 520 hours of sick leave, and there is no apparent justification for treating nonrepresented employees differently. Removal of the proration requirement for annual leave options if the eligibility of a nonrepresented employee is based on accumulated sick leave will provide parity and uniformity, and simplify administration of the annual leave option process.
In accordance with s.
230.35 (4e), Stats., employees
shall be given paid leave to vote if the only time they can vote is during work hours. Section
ER 18.11 says employees
may be given paid leave. Changes to s.
ER 18.11 are necessary to make it consistent with the statute.
Changes in s.
230.35 (2r), Stats., removed statutory restrictions that allowed only classified employees to participate in a catastrophic leave program established in the rules of the Director of the Office of State Employment Relations. This was done to allow certain unclassified employees to participate. Section
ER 18.15 governs catastrophic leave participation and rules, but currently applies only to classified employees. Therefore, changes to s.
ER 18.15 are necessary. Note: Some unclassified employees are excluded because they are covered under unique pay and benefit provisions. For instance, elected officials are not eligible for leave donated under the catastrophic leave provisions, and therefore, cannot donate or receive such leave.
Chapter
ER 18 does not make any reference to the bone marrow or organ donation benefits added to s.
230.35, Stats., by
1999 Wisconsin Act 125. Therefore, an addition to ch.
ER 18 is necessary.
Except for s.
ER 29.05, all compensation administration provisions for nonrepresented employees are now provided in the Compensation Plan. Therefore, creation of s.
ER 29.02 is necessary to indicate when reference to the Compensation Plan is appropriate.
The language describing the 6-month pay increase for project appointees in s.
ER 29.03 (2m) is no longer applicable, and therefore, should be deleted. Section E., 3.01 of the 2003-2005 Compensation Plan states that projects are not eligible for a 6-month pay increase.
The language describing the pay for various appointments in s.
ER 29.03 does not include any provision for use of Hiring Above the Minimum for current classified employees. Pay on appointment flexibility has been provided for broadband pay schedules and should also be provided for non-broadband schedules. Due to the labor market, many employees new to state service are being hired at pay rates higher than those being paid to current employees. Changes to s.
ER 29.03 are necessary to allow current employees with the same skills and experience to be paid the same as a new employee would be paid upon an original appointment.
Effective July 5, 1998, reinstatement eligibility and other eligibility historically tied to reinstatement, was increased from 3 years to 5 years. Because more than five years have passed, a distinction between 3-year eligibility and 5-year eligibility is no longer necessary. Changes to all provisions noting the distinction should now be made to simplify the eligibility to be 5 years in all cases. Therefore, changes to s.
ER 29.03 (6) regarding reinstatement are necessary.
The language describing pay on reinstatement in s.
ER 29.03 (6) states that “last rate received" is “the highest base pay rate received in any position in which the employee held permanent status." The intent of this language was to include only previously held positions, not the employee's current position. Changes to s.
ER 29.03 (6) are necessary to more clearly state that intent.
Compensation administration provisions for project employees are now provided in the Compensation Plan. Therefore, related references in ER 34.05 should be to, or include, the Compensation Plan.
Section
230.046, Stats., has been amended so that agencies no longer need to get OSER approval to offer their own basic supervision courses, to waive the basic supervision requirements, and for an agency's training tracking system. Sections
ER 44.03 (1) and
(2) and
44.07 (2) reflect prior law and are inconsistent with current law. Therefore, changes to those sections of ch.
ER 44 are necessary to make them consistent with the statute.
Comparison with Rules of Adjacent States
Rule changes that are for clarification only are not reflected in the comparison.
Where are pay provisions included for non-union employees - in your rules or a compensation plan?
IL: Pay provisions for nonunion employees are within our Pay Plan.
IA: Our administrative rules
MI: Pay provisions for non-represented employees are included in civil service rules and in the civil service compensation plan.
MN: Compensation Plan for unrepresented employees
Does any agency have the authority to provide grants to day care providers. If yes, are specific funds appropriated for these grants?
IL: No
IA: Unknown
MI: No
MN: Agencies do not have such authority.
If you have a special hiring program targeted at entry professional positions, is there a reporting requirement to the Legislature on the activities and results of such a program? If yes, what is required to be reported.
IL: No
IA: No
MI: No
MN: We have no such program.
Do your statutes require that state employees be granted paid leave to vote if the only time they can vote is during work hours? If so, are any employees excluded from the provision?
IL: No
IA: Yes, called voting leave; and No, all employees are included.
MI: There is no provision for paid time off specifically for voting purposes.
MN: Statute permits employees to be absent from work (paid) during the forenoon of an election day to vote. "Election" means a regularly scheduled state primary or general election, an election to fill a vacancy in the office of United States senator or United States representative, or an election to fill a vacancy in the office of state senator or state representative.
Do you provide different vacation schedules based on the type of position. If yes, what are they?
IL: No
IA: No
MI: No, vacation schedules and policies do not vary by the types of positions.
MN: Vacation schedules for managers are different than all other bargaining units.
What are your rules regarding the restoration of seniority for employees who leave and later return to state service?
IL: Seniority is only restored when a laid off employee is rehired within two years.
IA: Prior service credit is provided for all service in a permanent position.
MI: Only for purposes of annual leave accrual (vacation time) and longevity pay, employees who separate from state service and later return are eligible to have prior service hours added back in after they complete 5 years of continuous service. For purposes of employment preference, an employee who separates for reason other than leave of absence or layoff, loses all continuous service hours.
MN: Seniority is forfeited when an employee separates from state service. Time on the layoff list or an approved leave of absence is not considered a separation.
What are your rules regarding allowing employees to convert vacation into sabbatical or termination leave?
IL: Not allowed to convert.
IA: We have no such rules. All vacation is paid off at termination.
MI: All annual leave (vacation time) unused at the time of separation is paid at the employee's last rate of pay. These pay off amounts are subject to the maximum accrual caps which are based on years of service.
MN: Employees eligible to use vacation are compensated in cash for their unused vacation at the time they terminate service. Sabbatical leaves are not dependent upon vacation leave.
If vacation can be converted to sabbatical or termination leave, are there any rules regarding pro-ration of the amount that can be converted?
IL: Not applicable
IA: Not applicable
MI: Employees are subject to maximum annual leave accrual caps based on years of service. The payoff amounts cannot exceed these accrual cap amounts.
MN: Liquidation of vacation on separation is limited to 275 hours.
Do you consider Veterans Day a legal holiday, or a personal holiday to be used anytime in recognition of Veterans Day?
IL: Legal
IA: Veterans day is a legal state holiday.
MI: Veteran's Day is a legal holiday, observed on November 11.
MN: It is a legal holiday, but with the agreement of the Local Union, a substitute day may be observed for Veterans Day.
Do your statutes require that state employees be granted paid leave to vote if the only time they can vote is during work hours? If so, are any employees excluded from the provision?
IL: No
IA: Yes, called voting leave; and No, all employees are included.
MI: There is no provision for paid time off specifically for voting purposes.
MN: Statute permits employees to be absent from work (paid) during the forenoon of an election day to vote. "Election" means a regularly scheduled state primary or general election, an election to fill a vacancy in the office of United States senator or United States representative, or an election to fill a vacancy in the office of state senator or state representative.
Do you have a catastrophic leave program? If yes, are there any types of positions excluded from the program? Note: For these questions a catastrophic leave program would be any program allowing employees to donate leave to another employee (who has run out of leave) for an illness or injury that incapacitates the employee or an immediate relative requiring the employee to be absent from work for an extended period of time.
IL: No
IA: No
MI: Yes, we have an annual leave donation policy and an annual leave “bank" that are available to assist “employees facing financial hardship due to serious injury or prolonged illness of the employee or the employee's dependent spouse, child, or parent." In order to receive a leave transfer an employee must have completed the initial probationary period and have exhausted all leave credits.
MN: Yes, we have a vacation donation program. Employees may apply for the program if they have been employed by the state for at least six consecutive months, are eligible to accrue and use vacation (or personal days) or sick leave, are eligible for full or partial Employer Insurance contribution, have exhausted all forms of paid leave, and obtain medical documentation which verifies that a life threatening illness/injury necessitates absence from work for a minimum of six weeks.
Do you provide paid leave for bone marrow or organ donation?
IL: Yes. An employee may receive up to 6 weeks.
IA: We have no specific rule/policy on this subject. Determination would be considered within the context of our regular sick leave rules.
MI: There is no provision for paid time off specifically for bone marrow or organ donation. Sick Leave would have to be used for these situations.
MN: Yes, up to 40 hours.
Where are pay provisions included for non-union employees - in your rules or a compensation plan?
IL: Pay provisions for nonunion employees are within our Pay Plan.
IA: Our administrative rules
MI: Pay provisions for non-represented employees are included in civil service rules and in the civil service compensation plan.
MN: Compensation Plan for unrepresented employees.
Do you provide 6-month pay increases to any type of state employees?
IL: No
IA: Upon completion of the probationary period, promotion or reclassification to a higher pay grade.
MI: Yes, many of our pay ranges have 6 month steps.
MN: Some bargaining unit agreements allow these for employees at certain steps within their salary range.
Can new employees be hired above the minimum? Is this extended to movements of current employees (i.e., can the criteria used for setting pay the pay of a new employee be used when a current employee is moving to a new position)?
IL: Yes
IA: Yes, however, movements for current employees is up to the discretion of the agency.
MI: Yes, new employees can be hired above the minimum without any special approval if the agency can document the accepted rational (difficulty recruiting for the position, employee making more outside state service and higher rate is necessary to attract, special education/experience well beyond minimum qualifications needed, or previous state employee with pertinent experience). The same criteria can not be applied when moving current employees to new positions. Specific formulas and policies must be applied.
MN: Yes, new hires can be hired above minimum. Pay upon movement to a new position is dependent upon language in the bargaining unit contract.
Where are pay provisions included for non-union employees - in your rules or a compensation plan?
IL: Pay provisions for nonunion employees are within our Pay Plan.
IA: Our administrative rules
MI: Pay provisions for non-represented employees are included in civil service rules and in the civil service compensation plan.
MN: Compensation Plan for unrepresented employees
Does your state have basic supervisory training? Are agencies authorized to offer their own supervisory training? If yes, does the agency's training have to be approved by any centralized human resources office?
IL: No, yes, and no, respectively.
IA: Yes, courses included in the basic supervisory certificate program are:
Achieving Communication Effectiveness; Customer service; Ethics in the Workplace; Human Relations Skills; Discipline, Grievances, & the Contracts; Family Medical Leave Act; EEO/AA: Making the Most of Your Workforce; From Interview to Hire; Investigating Employee Misconduct; Performance Evaluation; Preventing Sexual Harassment for Supervisors; and What is the ADA? Agencies can provide their own supervisory training without approval by HRE, however they typically focus their training on department specific issues.
MI: Yes, yes and no, respectively.
MN: We offer required supervisory training to all new supervisors through the state's Training and Development Resource Center. Agencies may offer additional training if they choose which does not have to be approved by the centralized human resources office.
There are no existing or proposed federal regulations that are intended to address the activities to be regulated by the proposed rules.
No factual data or analytical methodologies were necessary for the rule changes involved herein.
The proposed rule changes affect only persons employed by or who seek employment with the State of Wisconsin. The rule changes will not affect small business.
There will be no anticipated costs that would be incurred by the private sector.
Fiscal Estimate
There is no fiscal impact caused by the other changes in this rule order or the changes are required by statute for which any fiscal report should have already been considered.
Initial Regulatory Flexibility Analysis
The proposed rule does not affect small business; therefore, an initial regulatory flexibility analysis is not required.
Contact Person
David Vergeront
Office of State Employment Relations
101 East Wilson Street
Madison, WI 53703
608-266-0047
Notice of Hearing
Employment Relations - Merit Recruitment and Selection
NOTICE IS HEREBY GIVEN that pursuant to ss.
230.05 (5), Stats., and interpreting s.
230.05 (1), Stats., the Division of Merit Recruitment and Selection in the Office of State Employment Relations will hold a Public Hearing at the time and place shown below to consider the creation of permanent rules relating to the Entry Professional Program, submission of notices and requests to the administrator, promotional appointments and pay, involuntary transfers, periods of eligibility for reinstatement, the definition of “state property", acting assignments and obsolete references, correct cross-references, clarifying language and other minor, technical changes.
Date: Wednesday March 2, 2005
Time: 10:30 A.M. to 11:30 A.M.
Location: Conference Room 4B
Administration Building, 4th Floor
101 E. Wilson Street
Madison, WI
The hearing will be held jointly with a hearing by the Office of State Employment Relations, which is simultaneously promulgating rules. Please see the separate hearing notice for an analysis of the proposed rule order of the Office of State Employment Relations.
The hearing site is accessible to persons with disabilities. If you need an interpreter, materials in alternate format or other accommodations for this meeting, please inform the contact person listed at the end of this notice before the hearing.
Written comments on the rules may be sent to the contact person by 12:00 P.M. noon on March 4, 2005. Written comments will receive the same consideration as written or oral testimony presented at the hearing.
A copy of the rule is available from the contact person listed at the end of this notice, or by going to “Announcements" at
http://oser.state.wi.us.
Analysis Prepared by Division of Merit Recruitment and Selection
Statutory Authority: Section
230.05 (5), Stats., grants the Administrator of the Division of Merit Recruitment and Selection general authority to promulgate rules on provisions for which the administrator has statutory responsibility.
Section
19.45 (11) (a), Wis. Stats., requires the Administrator to promulgate rules to implement a code of ethics for certain classified and unclassified state employees.
Statutes Interpreted:
•
19.45 (11) (a), relating to a code of ethics
•
230.06 (1) (d) and (e), relating to information provided by agencies to the Administrator
•
230.15 (3) and 230.29, relating to transfers
•
230.19, relating to promotion
•
230.22, relating to an entry professional program
•
230.25 (1), relating to certification
•
230.25 (1n) (a), relating to expanded certification
•
230.25 (3) (a), relating to reinstatement
•
230.34 (1) (a), relating to demotions
•
230.34 (2), relating to layoffs
•
There are no related statutes or rules other than those listed above.
Plain Language Analysis of the Rules
A definition of “compensation plan" is created.
Classifications previously in the Entry Professional Program have been eliminated from it except at an agency's specific request. The program's value as an alternative recruitment and selection program was also diminished when the statutes were changed in 1998 to permit flexible certification for all positions. Thus, the need to provide separate information on the program for the annual affirmative action report no longer exists. The reporting requirement is repealed.
Certification requests are submitted in a variety of forms, both on paper and electronically. This amendment removes references to “a prescribed form", permitting submission of requests in paper or electronic format.
Chs.
ER-MRS 12,
22 and
27 relating to references to “handicap" and “handicapped".
This amendment changes the term “handicap" or “handicapped" to “disability" or “individual with a disability", respectively, in various provisions. These changes are being made to conform with preferred terminology and to be consistent with other references in chapters 111 and 230, Wisconsin Statutes, and the Administrative Code.
Under certain conditions, an appointment from a register must be considered a promotion even though the appointee has reinstatement eligibility to the position being filled. The appointing authority should have the discretion to treat the appointment as a promotion.
Also see explanation under “Chs.
14,
15,
16,
17 and
22, relating to references to the Compensation Plan."
Chs.
14,
15,
16,
17 and
22 relating to references to the Compensation Plan.
Determining the rate of pay on promotion needs to include references to the Compensation Plan. Therefore, related references to s.
ER 29.03 in chs.
ER-MRS 14,
15,
16,
17 and
22 are amended to include the Plan.
A change is necessary to clarify that involuntary transfers are permitted within an employing unit and between employing units of the same agency. This change would clarify that voluntary and involuntary transfers are treated the same.
Also see explanation under “Chs.
14,
15,
16,
17 and
22, relating to references to the Compensation Plan."
Chs.
ER-MRS 16,
22 and
34, relating to references to reinstatement eligibility.
Sections
230.25 (3) (a),
230.31 (1) (intro) and
(a),
230.33 (1) and
230.40 (3), Stats., were amended by
1997 Wisconsin Act 307 to increase the reinstatement eligibility period for state employees from 3 years to 5 years, effective July 5, 1998. Because more than 5 years have elapsed, a distinction between the “old" 3-year eligibility and the “new" 5-year eligibility is no longer necessary. Removal of all provisions noting the distinction is made to improve the readability of the provisions.
Also see explanation under “Chs.
14,
15,
16,
17 and
22, relating to references to the Compensation Plan."
The language is modified to eliminate various requirements that agencies submit copies of transactions to the administrator, specifically when the appointing authority notifies the employee of a demotion or when the employee accepts a demotion within an agency or between agencies. The process will be better served by the appointing authority placing a copy of these transactions in the employee's personnel file.
Also see explanation under “Chs.
14,
15,
16,
17 and
22, relating to references to the Compensation Plan."
The language is amended to eliminate two incorrect references and to clarify application of the rules in certain situations.
Also see explanation under “Chs.
14,
15,
16,
17 and
22, relating to references to the Compensation Plan."
Also see the explanation under “Chs.
ER-MRS 16,
22 and
34, relating to references to reinstatement eligibility".
Also see explanation under “Chs.
12,
22 and
27, relating to references to “handicap" and “handicapped".
The definition of “state property" is updated to clearly include information technology and telecommunications resources.
Also see explanation under “Chs.
12,
22 and
27, relating to references to “handicap" and “handicapped".
The language is modified to eliminate the requirement that the appointing authority submit a copy of the acting assignment notice to the administrator. The process will be better served by the appointing authority placing a copy in the employee's personnel file.
See the explanation under “Chs.
ER-MRS 16,
22 and
34, relating to references to reinstatement eligibility".
Comparison of changes to rules in adjacent states.
This section represents a comparison of the rules involved herein that exist in adjacent states. Rule changes that are for clarification only are not reflected.
1. If you have a special hiring program targeted at entry professional positions, is there a reporting requirement to the Legislature on the activities and results of such a program? If yes, what is required to be reported?
Illinois: No
Iowa: No
Michigan: No
Minnesota: We have no such program.
2. Do your rules allow agencies to submit requests to fill a position by electronic form?
Illinois: Yes
Iowa: Yes
Michigan: State of Michigan has decentralized hiring; Civil Service does not need to approve the filling of positions, however, a current hiring freeze necessitates approval from Budget to fill positions. That form is available online.
Minnesota: Yes, all requests are submitted this way.
4. If an employee is appointed to a higher classification, and the employee has reinstatement eligibility to that position, is it considered a promotion, or does the appointing authority have discretion to consider it a promotion?
Illinois: Promotion
Iowa: No
Michigan: No. They would have to reinstate the employee using the recall list
Minnesota: It is considered a promotion if the higher class is at least two steps higher than the current one.
Chs.
14,
15,
16,
17 and
22 relating to references to the Compensation Plan.
5. Where are pay provisions included for non-union employees – in your rules or a compensation plan?
Illinois: Pay provisions for nonunion employees are within our Pay Plan.
Iowa: Our administrative rules
Michigan:
Pay provisions for non-represented employees are included in civil service rules and in the civil service compensation plan. A coordinated compensation panel sends a “recommended coordinated compensation plan for all nonexclusively represented classified employees to the civil service commission" each year for approval. Further details can be found in Regulation 6.06,
http://www.michigan.gov/mdcs/1,1607,7-147-6877_9788-20144--,00.html
Minnesota: Compensation Plan for unrepresented employees
6. Can employees be involuntarily transferred within an employing unit of any agency or between employing units within an agency?
Illinois: No
Iowa: Yes, we call this a “reassignment".
Michigan: Yes. We refer to this as a lateral job change.
Minnesota: Employees can be reassigned as outlined in our bargaining agreements.
7. Is an agency required to submit a notice to the central HR office of an involuntary or voluntary demotion?
Illinois: Yes
Iowa: No, however, the payroll processing document would need to indicate the reason for the demotion.
Michigan: No
Minnesota: We have an HRIS database, in which all such transactions are recorded.
8. Does your ethics code for civil service employees prohibit the use of IT and telecommunications for personal gain?
Illinois: Yes
Iowa: No, this would be accomplished through agency work rule policies.
Minnesota: The law says: An employee shall not use or allow the use of state time, supplies or state-owned or leased property and equipment for the employee's private interests or any other use not in the interest of the state, except as provided by law.
9. Is an agency required to submit a notice to the central HR office of an acting assignment?
Illinois: No
Iowa: No, this would only be required if the agency wanted to compensate the employee for such an assignment
Michigan: No
Minnesota: Work out of class assignments are recorded in our HRIS database.
There are no existing or proposed federal regulations that are intended to address the activities to be regulated by the proposed rules.
No factual data or analytical methodologies were necessary for the rule changes involved herein.
The proposed rule changes affect persons employed by or who seek employment with the State of Wisconsin. The rule changes will not affect small business. There will be no anticipated costs that would be incurred by the private sector.
Fiscal Estimate
The elimination of reporting requirements for the Entry Professional Program and the submission of notices by appointing authorities may result in a minimal workload reduction for staff of the agencies and the Office of State Employment Relations. However, the amounts are indeterminate.
There is no fiscal impact from the other changes in this rule order.
Initial Regulatory Flexibility Analysis
The proposed rule does not affect small business; therefore, an initial regulatory flexibility analysis is not required.
Contact Person
Bob Van Hoesen
Office of State Employment Relations
101 East Wilson Street
Madison, WI 53703
608-267-1003
Notice of Hearing
Financial Institutions - Banking
NOTICE IS HEREBY GIVEN That pursuant to ss.
224.72 (7p) (a) to
(c),
224.72 (8),
224.73 (3),
224.79 (1) and
(2), and
227.11 (2), Stats., and interpreting ss.
224.72 (3) (b),
224.72 (7) (d) 1. and
2.,
224.72 (7p) (a) to
(c), and
224.79 (1) and
(2)., Stats., the Department of Financial Institutions, Division of Banking will hold a public hearing at the Department of Financial Institutions, Office of the Secretary, 345 W. Washington Avenue, 5
th Floor in the city of Madison, Wisconsin, on the
28th day of February, 2005, at 1:30 p.m. to consider a rule to affect chs. DFI—Bkg 40 to 43 and create chs.
DFI-Bkg 44 and
45, relating to definitions, applicability requirements, registrations, annual audits and reports, trust accounts, ethical and competent practice, education, examination, brokerage agreements and consumer disclosures.
Analysis Prepared by the Department of Financial Institutions, Division of Banking
Explanation of agency authority: Pursuant to subch. II, ch.
224, the department regulates mortgage bankers, mortgage brokers and loan originators.
Summary of proposed rule: Chapters DFI—Bkg 40 to 43 have been affected by various acts since 1991; however, with the exception of the promulgation of ch. DFI—Bkg 41 regarding fees and registration pursuant to
1997 Act 45, these chapters have not been updated to reflect either these acts or current industry practices. Most recently,
2003 Act 260 required that the division establish by rule standards, for approval by the loan originator council, regarding examinations in the law of mortgage banking and mortgage brokering, and regarding a curricula of education and hours for the same.
2003 Act 260 also required the division to prescribe the form and content of mortgage brokerage agreements and consumer disclosure statements. This rule updates administrative code provisions regarding definitions, applicability requirements, registrations, annual audits and reports, trust accounts, and ethical and competent practice; sets forth standards regarding education and examination; and sets forth the form and content of brokerage agreements and consumer disclosures. The standards in this rule have been approved by the loan originator council.
Summary of and preliminary comparison with existing or proposed federal regulation: None.
Comparison with rules in adjacent states: Illinois, Iowa, Michigan and Minnesota all regulate mortgage banking to a comparable degree in statute and rule. This includes regulating in some form mortgage brokerage agreements and consumer disclosure agreements. However, only Illinois requires some form of education and competency examination.
Summary of factual data and analytical methodologies: The department reviewed comparable statutes and regulations, industry practices, and education courses offered by industry associations. The standards set forth in the rule were also reviewed and approved by the loan originator council.
Analysis and supporting documentation used to determine effect on small business: The rule does not have a significant economic impact on small business. First, the rule consists primarily streamlining out-dated text. Second, the Wisconsin Senate (by voice vote) and Wisconsin Assembly (97 ayes, 2 noes) in
2003 Act 260 mandated competency examinations, continuing education, brokerage agreements and disclosure statements for the mortgage banking industry, and directed that the department establish certain standards and forms as part of these mandates. The proposed rule imposes no mandates and solely establishes these standards and forms and, therefore, is not the cause for any significant economic impact on small business that may result from the act.
Fiscal Estimate
The fees established in this rule are set at a level that will approximate the costs of contract services to meet the requirements included in the
2003 Act 260. There is no increase to the loan originator license fee. This rule increases revenues to the Department to approximate the cost of administering a nationwide competency examination and continuing education program for mortgage loan originators and solicitors included in the legislation. The estimated total annual revenue increase is $846,250. The rule establishes a competency examination fee at $150. Other fees established in the rule cover the cost of approving continuing education providers ($100 for two years) and continuing education courses ($150 for two years) to ensure they meet criteria established in the rule and by the Loan Originator Council. The rule also increases the cost for employment transfers from $20 to $40.
Contact Person
A copy of the proposed rule and fiscal estimate may be obtained at no charge from Mark Schlei, Deputy General Counsel, Department of Financial Institutions, Office of the Secretary, P.O. Box 8861, Madison, WI 53708-8861, tel. (608) 267-1705. A copy of the proposed rule may also be obtained and reviewed at the Department of Financial Institutions' website,
www.wdfi.org.
Written comments regarding the proposed rule may be submitted to Mark Schlei, Deputy General Counsel, Department of Financial Institutions, Office of the Secretary, P.O. Box 8861, Madison, WI 53708-8861, tel. (608) 267-1705, or via the department's website contact page, e-mail the secretary. Written comments must be received by the conclusion of the hearing.
Notice of Hearing
Natural Resources
(Fish, Game, etc.)
NOTICE IS HEREBY GIVEN THAT pursuant to ss.
29.014 (1),
227.11 (2) and
227.24 (1) (a), Stats., interpreting s.
29.014 (1), Stats., the Department of Natural Resources will hold a public hearing on Natural Resources Board Emergency Order No. FH-67-04(E) pertaining to the closure of sturgeon spearing on the Lake Winnebago system. This emergency order was published on January 27, 2005 and the corrected version was republished on February 2, 2005. The repeal and recreation of s.
NR 20.33 (5) (c) allows the Department to close the sturgeon spearing season on the Lake Winnebago system at the end of the day that 100% of the total allowable harvest is reached.
Notice is hereby further given that the hearing will be held on:
Wednesday, February 23, 2005 at 6:00 p.m.
Darboy Club
N9695 County Trunk N (corner of N and KK)
Appleton
NOTICE IS HEREBY FURTHER GIVEN THAT following the public hearing on the emergency rule a public informational meeting will be held to discuss options for future seasons. It is anticipated the public information meeting will start at approximately 7:00 p.m.
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 Karl Scheidegger at (608) 267-9426 with specific information on your request at least 10 days before the date of the scheduled hearing.
Fiscal Impact
The proposed rule has no fiscal impact.
The emergency 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 Karl Scheidegger, Bureau of Fisheries Management and Habitat Protection, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until March 4, 2005. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearing. A personal copy of the emergency rule and fiscal estimate may be obtained from Mr. Scheidegger.
Notice of Hearing
Natural Resources
(Environmental Protection-Air Pollution Control)
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 an additional public hearing 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 conditions will be developed during permit preparation for sources that could be regulated by registration or general permits. Sources which may be eligible for registration or general permits are 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 are minor technical changes to provide correct references to the recently updated ch.
NR 445 which were inadvertently omitted in the processing of that rule package.
NOTICE IS HEREBY FURTHER GIVEN that the proposed rule revisions make several changes to the original version of the rule that went to public hearing in 2004. These changes were made to provide greater clarity to the rule and to further streamline the permitting program for these sources. Changes made to the rule include:
•
Expansion of the categories of sources eligible for registration construction permits to include major sources making changes or modifications that result in low emission increases;
•
Exemption from construction permits for certain changes and modifications made under a general operation or registration operation permit; and
•
Clarification of the eligibility criteria for the general and registration permit programs.
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:
SmallBusinessReg.Coordinator@dnr.state.wi.us or by calling (608) 266-1959.
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 hearing will be held on:
Thursday, March 3, 2005 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 (608) 266-2856 with specific information on your request at least 10 days before the date of the scheduled hearing.
Fiscal Estimate
The use of general and registration permits will result in reduced programmatic costs in the long run. While the Department will spend resources similar to that of a standard permit review to prepare a general permit or a registration permit, the resulting product will be used to regulate several similar sources resulting in lower costs associated with review of permit applications.
It is anticipated that approximately 50 registration permits and 50 general permits will be issued for new construction annually. Under proposed fees for these projects, the department would see $155,000 in additional revenue. If these projects were required to undergo the traditional permit route, the Department would garner approximately $500,000 in permit fees for these projects. Although the registration and general permit programs will result in less administrative burden for regulated facilities, the department will incur the costs of implementing the program and developing permits for use under these programs. Thus, these programs are not expected to change the department's need for permitting resources.
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 Caroline Garber, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until March 4, 2005. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearing. 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 by calling (608) 266-7718 or by fax at (608) 267-0560.
Notice of Hearing
Transportation
NOTICE IS HEREBY GIVEN that pursuant to ss.
348.26 (2) and
348.27 (2), Stats., and interpreting ss.
59.84 and
84.295 (8), Stats., the Department of Transportation will hold a public hearing on the
1st day of March, 2005, at the Hill Farms State Transportation Building,
Room 144-B, 4802 Sheboygan Avenue, Madison, WI, at
1:00 PM, to consider the emergency rule and proposed permanent rule amendment of chs.
Trans 254 and
255, Wisconsin Administrative Code, relating to the standards and procedures for the issuance of single and multiple trip oversize and overweight permits.
Parking for persons with disabilities and an accessible entrance are available.
A copy of the emergency rule may be obtained upon request from Mark Woltmann, Wisconsin Department of Transportation, Division of Transportation Infrastructure Development, Room 451, P. O. Box 7965, Madison, WI 53707-7965, or by calling (608) 266-1744.
Analysis Prepared by the Wisconsin Department of Transportation
Plain Language Analysis: Chapters
Trans 254 and
255 establish the standards and procedures for the issuance of single and multiple trip oversize and overweight permits. Both chapters have route limitations that prohibit the permitting of oversized vehicles on portions of the Milwaukee County expressway system. Specifically, vehicles or loads or dimensions greater than 11 feet in width, 13
½ feet in height, or 100 feet in length are prevented from using the Milwaukee Expressway. These limitations have severe consequences for the timely and cost effective reconstruction of the Marquette Interchange.
Completing the construction of this project on time and on-budget requires the transporting of steel and concrete bridge components larger than these dimensions to the construction site. Structural members are currently being manufactured for the initial stages of construction of the Marquette Interchange Reconstruction project. These beams and girders exceed the transport limits detailed above and cannot be reduced in size. The steel and concrete bridge components must be delivered to the construction site beginning in February 2005.
Summary of, and Preliminary Comparison with, Existing or Proposed Federal Regulation:
23 CFR parts 657 and
658 regulate the length, width and weight limitations of trucks. Part 657 prescribes requirements for administering a program of vehicle size and weight enforcement on Federal-aid highways, including the required annual certification by the State. It supports the development and operation by each State of an enforcement process that identifies vehicles of excessive size and weight and provides a systematic approach to eliminate violations and thus improve conditions. Part 658 identifies a National Network of highways available to vehicles authorized by provisions of the Surface Transportation Assistance Act of 1982 (STAA) as amended, and to prescribe national policies that govern truck and bus size and weight. FHWA policy is to provide a safe and efficient National Network of highways that can safely and efficiently accommodate the large vehicles authorized by the STAA. This network includes the Milwaukee Expressway as well as the Interstate System and other qualifying Federal-aid Primary System Highways.
Comparison with Rules in Adjacent States
The rule making will have no effect on Interstate operation because it is exclusive to the greater Milwaukee area. The Federal government regulates the size and weight of commercial vehicles on the Interstate Highway system. State governments regulate the size and weight of commercial vehicles on state routes in addition to enforcing the Federal size and weight rules.
Michigan
Pursuant to Act 300 of the Public Acts of 1949, the Michigan Vehicle Code (MVC), transport permits are required for vehicles and loads that exceed the maximum legal limits established in the MVC. Transport permits are only issued for vehicles and loads that cannot reasonably be reduced in size or transported by other means. There are two different types of permits available to individuals or companies to transport their vehicles/loads on Michigan state trunk lines: (1) single trip permits and (2) extended permits. Single trip permits may be issued for a five-day period if so requested. A single trip permit is valid for one trip only, but may be issued to include a return move. Extended permits may be issued on an annual basis and are issued on the vehicle/load being transported, there are various categories of permits including: construction, miscellaneous, agricultural, pipe and pole, and modular or mobile home. Each permit includes appropriate conditions and restrictions based on the size and or weight of the movement.
It is the purpose of the Michigan Department of Transportation to issue special permits for the movement of necessary overweight and oversize vehicles or loads consistent with the following obligations: (a) protection of the motoring public from potential traffic hazards; (b) protection of highway surfaces, structures, and private property; and, (c) provisions for a normal flow of traffic with a minimum of interference. Maximum vehicle dimensions are 13 feet, 6 inches in height and 8 feet in width or 8 feet, 6 inches in width on designated highways. The maximum lengths vary by type of vehicle.
Minnesota
The Department of Transportation's Office of Freight and Commercial Vehicle Operations (OFCVO) is responsible for implementing, administering and enforcing Minnesota laws and federal regulations governing carriers transporting oversized and overweight loads. Permits regulate the movement of vehicles upon State Trunk Highways with or without load, that exceed maximum legal size for vehicle width, height, length, weight, or number of vehicles in combination.
Maximum vehicle dimensions are 13 feet, 6 inches in height and 8 feet 6 inches in width (excluding rear view mirrors or temporary load securement devices that may extend an additional 3 inches on each side of the vehicle or load). The maximum lengths vary by type of vehicle and range between 40 to 75 feet. Anything over these legal dimensions requires a permit to travel on a state highway. The Overdimension Transportation Permit is issued by OFCVO and it must be carried in the vehicle during transport.
Single trip permits allow one move within a 5-day period. A Job permit allows multiple moves over the same route by the same vehicle or combination within a two-month period. Annual oversize permits allow multiple moves over various routes by the same vehicle or combination within a specified time frame that varies from 2 to 12 months depending on the type of annual.
Illinois
Oversize and Overweight (OS/OW) permitting is administered in Illinois by the Department of Transportation, Permits Unit. Oversize and Overweight permits allow the operation of vehicles or loads in Illinois that exceed the legal maximum dimensions and weights. Maximum legal dimensions are 13 feet, 6 inches in height and 8 feet, 6 inches in width on Class I and II highways or 8 feet on Class III, other state highways, and local roads and streets. Legal length dimensions vary by vehicle type and class of highway.
The permitting process is intended to provide for highway safety. There are Single Use Permits (5 days), Round Trip Permits (10 days), Quarterly and Yearly Permits, Repeated Moves of Like Objects Permits, Highway Crossing Permits, and Grain Permits.
The Department of Transportation is authorized by the Illinois Size and Weight Law (625 ILCS5/Chapter
15) to issue special permits. These special permits allow the operation of vehicles or loads that exceed legal maximum dimensions and weights. These permits are valid only for those highways under Department jurisdiction.
Iowa
The maximum legal dimensions allowed on Iowa roadways is 8 feet in width and 13 feet, 6 inches in height or 14 feet in height for auto transporters. The length limits vary by vehicle type and range between 40 feet and 75 feet.
Vehicles and/or loads that are indivisible (ones that cannot be broken down) and exceed the above legal dimensions or weights can be moved with an oversize permit. Single trip, multi-trip, annual, annual oversize/overweight, or all-systems permits are available. Oversize loads can be moved from 30 minutes before sunrise until 30 minutes after sunset unless qualified for continuous movement. Oversize loads requiring law enforcement escort are required to provide at least one week notice prior to the intended travel date if they choose to utilize the escort service of the Office of Motor Vehicle Enforcement.
Summary of Factual Data and Analytical Methodologies Used and How the Related Findings Support the Regulatory Approach Chosen
Without this rule amendment, the alternatives are either to: (a) transport these oversize loads on the city surface street system which will have greater safety impacts and increase potential damage to local roadways not designed to carry these types of loads; or (b) redesign the project to reduce the size of the structural members (beams and girders) to meet these size limitations which will significantly increase the project costs and the time required to complete the project.
The rule modifications give the Department authority to allow dimensions of a vehicle or load to exceed 11 feet in width, 13½ feet in height, or 100 feet in length on the entire Milwaukee Freeway under extraordinary circumstance when, in the opinion of the Department, public health and welfare is better served, and to impose additional conditions to promote the safe operations of the vehicle and load when necessary. The Department already exercises this same authority on the remainder of the state trunk highway system.
Before any oversize or overweight vehicle can travel legally on Wisconsin highways, its operator must first obtain a state permit from the Department of Transportation. To issue this permit, the Department must evaluate the proposed route for potential hazards such as roads that area too narrow, bridges without adequate vertical clearance, areas that are congested, and roadbeds that are unstable during spring thaw. The Department must also ensure that heavy loads can travel safely without damaging the state's bridges.
Effect on Small Business and, If Applicable, Any Analysis and Supporting Documentation Used to Determine Effect on Small Businesses
The rule is expected to have no significant effect on small business practices or net worth of small businesses. These existing Milwaukee Freeway route restrictions would either create added safety and infrastructure concerns because these oversized loads would be shifted to secondary roads or local streets not engineered to handle this type of load or it would require more trucks and truck drivers to move a greater number of smaller sized structural components. This shift, in turn, would increase traffic congestion and its related safety problems that result in increased delivery times and costs to local area businesses. You may contact the Department's small business regulatory coordinator by phone at (608) 267-3703, or via e-mail at the following website:
Fiscal Effect and Anticipated Costs Incurred by Private Sector
See previous section. Routing oversized loads on the Milwaukee surface street system may not be practical due to the load lengths and the turning radiuses required. If the street geometry does allow the movement, these street systems may not be designed to carry the weight of such loads. Doing so will result in unsafe conditions and possible permanent damage to surface street system. By eliminating these route restrictions for highway construction and repair work, a net benefit to the private sector should be realized through improved traffic operations and less traffic congestion during the construction or repair and once the roadway work is completed.
Copies of Emergency Rule
Requests for copies of the emergency rule should be submitted to Mark Woltmann, Department of Transportation, Division of Infrastructure Development, Room 451, P.O. Box 7965, Madison, Wisconsin 53707-7965. You may also contact Mr. Woltmann by phone at (608) 266-1744.
To view the emergency rule or the proposed permanent rule, or submit written comments on the permanent rule via e-mail/internet, you may visit the following website:
