Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 604, 4/14/2006

Rule-making notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

[CR 06-028]

(reprinted from 3/31/06, Wis. Adm. Register)

Rule related to minor remedial drafting changes of department rules.

The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed rule that make minor remedial drafting changes to a number of department rules.

DATCP will hold one public hearing at the time and place shown below. DATCP invites the public to attend the hearing and comment on the proposed rule. Following the public hearing, the hearing record will remain open until Friday, April 21, 2006 for additional written comments. Comments may be sent to the Office of Legal Counsel, at the address below, by email to [e-mail] or online at https://apps4.dhfs.state.wi.us/admrules/public/Home

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Office of Legal Counsel, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or emailing [e-mail]. Copies will also be available at the hearings. To view the proposed rule online, go to:

https://apps4.dhfs.state.wi.us/admrules/public/Home

To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator Keeley Moll at the address above, by emailing to [e-mail] or by telephone at [phone].

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by April 5, 2006, by writing to Karen Schultz, Office of Legal Counsel, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Hearing Dates and Locations

Thursday, April 13, 2006

1:00 p.m. to 3:00 p.m.

Department of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Room 172

Madison, WI 53718

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

This rule makes technical changes to a number of current rules administered by the Department of Agriculture, Trade and Consumer Protection (“DATCP"), related to a variety of topics. This rule describes the discretion that DATCP may exercise in the enforcement of regulations against small business.

Statutory Authority

Statutory Authority:   ss. 93.07 (1), 92.05 (3) (c), 92.14 (8), 93.50 (2) (f), 94.72 (13) (a), 95.197 (2), 95.71 (8), 97.09 (4), 97.20 (4), 97.22 (8), 97.41 (2) and (5), 98.03 (2), 98.18 (2), and 895.59, Stats.

Statutes Interpreted: ss. 92.05, 92.14, 94.72, 95.197, 95.71, 97.20, 97.22, 97.41, 98.03, 98.18, 93.50, and 895.59, Stats.

DATCP has broad authority under 93.07(1) to adopt rules needed to implement laws under its jurisdiction. Under s. 895.59, Stats. (created by 2003 Wisconsin Act 145), DATCP is required to adopt rules describing the discretion that it may exercise in enforcement of its regulations against small businesses. DATCP has specific authority, under the provisions cited above, to adopt rules related to each of the topics addressed by this rule.

Rule Content

Small business enforcement discretion: Under s. 895.59, Stats. (created by 2003 Wisconsin Act 145), state agencies are required to adopt rules describing the discretion they may exercise when enforcing regulations against small businesses. This rule describes the discretion that DATCP may exercise when enforcing regulations against small businesses. DATCP already exercises enforcement discretion, as described in this rule.

Technical changes to current rules.

This rule also makes minor technical changes to a number of rules administered by the DATCP. This rule does all of the following:

Conforms fertilizer tonnage fee (agricultural chemical cleanup surcharge) to current statute The department is currently charging the (lower) statutory fee, not the obsolete (higher) fee that appears in the current rule (ATCP 40).

• Updates technical standards that are incorporated by reference in current commercial feed rules (ATCP 42). The updates refer to the latest edition (2006) of the official publication of the Association of American Feed Control Officials.

Updates current standards for the professional certification of agricultural engineering practitioners. The revised standards address new agricultural engineering practices, and the planning phases of engineering projects. The revisions also make minor changes to job class criteria for some existing practices, reflecting changes in technology and scale of current projects. DATCP coordinated these revisions with the United States Department of Agriculture (NRCS) and county land conservation departments, including practitioners who serve federal, state and county conservation programs.

Clarifies DATCP's meat holding order and condemnation authority (ATCP 55).

Corrects inconsistent rules related to the legal “shelf life" of smoked fish (one rule says 17 days, the other says 21 days). This rule says 21 days.

• Changes current dairy plant rules (ATCP 80) to make them consistent with current federal standards. This includes minor technical changes related to pasteurization standards, thermometers and temperature readings, as well as updates to technical standards incorporated by reference (ATCP 80 Appendix). The updates refer to the latest editions of the 3-A Sanitary Standards and Accepted Practices published by the 3-A Sanitary Standards, Inc.

• Updates technical standards that are incorporated by reference in current weights and measures rules (ATCP 92). The updates refer to the latest editions (2006) of current weights and measures handbooks published by the National Institute of Standards and Technology.

Clarifies, per current statutes, that local weights and measures inspectors must be civil service employees (conforms rule to current statute).

Eliminates minor obsolete accounting provisions (in ATCP 105) related to the calculation of cigarette “cost" for purposes of the Unfair Sales Act (“minimum markup law").

Clarifies the relationship between DATCP's home improvement code (ATCP 110) and basement waterproofing code (ATCP 111), both of which apply to basement waterproofing services.

Clarifies prohibition against misleading charity claims in coupon book schemes (ATCP 131).

• Repeals current rules related to dairy cattle grades (ATCP 158), because the rules are obsolete and no longer used.

• Corrects typographical errors and cross-references, eliminates obsolete provisions, conforms rules to current statutes, creates clarifying notes, and makes other non-substantive drafting and organizational changes to current rules.

Pursuant to s. 227.21, Stats., DATCP will request permission from the Attorney General and the Revisor of Statutes to incorporate each updated technical standards by reference.

Fiscal Estimate

DATCP already exercises enforcement discretion, as described in this rule, so the effect will be minimal. Fines and forfeitures are paid to the state school fund, not DATCP. Other provisions of this rule will have no fiscal effect on DATCP or local units of government.

Business Impact

DATCP already exercises enforcement discretion, as described in this rule. The current exercise of discretion prevents unnecessary costs to small businesses. The codification of DATCP's current enforcement policy will not change that policy, or have a major additional impact on business. The other provisions of this rule will have no significant effect on business.

Federal Regulations

Several of the technical changes in this rule will make DATCP rules consistent with current federal standards. Otherwise, there are no existing or proposed federal regulations similar to this rule.

Surrounding State Programs

Surrounding states (Illinois, Indiana, Iowa, Michigan and Minnesota) do not have comparable rules, except that some use comparable technical standards.

Notice of Hearing

Chiropractic Examining Board

[CR 06-006]

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Chiropractic Examining Board in ss. 15.08 (5) (b) and 227.11 (2), Stats., and interpreting s. 446.04, Stats., the Chiropractic Examining Board will hold a public hearing at the time and place indicated below to consider an order to amend s. Chir 6.02 (6), relating to adequate education prior to application of new therapies and treatment modalities.

Hearing Date, Time and Location

Date:   April 27, 2006

Time:   8:15 a.m.

Location:   1400 East Washington Avenue

  Room 121A

  Madison, Wisconsin

Appearances at the Hearing

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to Pamela Haack, Paralegal, Department of Regulation and Licensing, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email at [e-mail]. Comments must be received on or before May 11, 2006 to be included in the record of rule-making proceedings.

Statutes interpreted: Section 446.04, Stats.

Statutory authority: Sections 15.08 (5) (b) and 227.11 (2), Stats.

Explanation of agency authority: The Chiropractic Examining Board licenses and regulates the conduct of chiropractors. The board is authorized under ss. 15.08 (5) and (6), 446.02 (1) (b) and 446.02 (2) (b), Stats., to promulgate rules relating to the educational requirements for licensure and the requirements for continuing education of chiropractors and unprofessional conduct.

Related statute or rule: There are no other related statutes or rules other than those listed above.

Plain language analysis: This proposed rule-making order makes changes to reflect the need for chiropractors to receive adequate training, education and experience prior to the introduction, or application, of new therapies and treatment modalities in their chiropractic practice application.

New therapies and treatment modalities, such as cold laser therapy and other potential new high-visibility therapies, are being introduced into the practice of chiropractic treatment on a regular basis. To ensure that these new therapies and treatment modalities being made available by advancements in the field are administered appropriately, and to adequately educate chiropractors on the treatment of their patients, a rule change specifying that the chiropractor should have adequate education and training prior to patient application will be required.

SECTION 1 amends the rules to specify that chiropractors need adequate training, education and experience relating to the use of new therapies and treatment modalities in the chiropractic profession to assure competence prior to application.

Summary of, and comparison with, existing or proposed federal regulation: None.

Comparison with rules in adjacent states:

Illinois:

Illinois's administrative code has no mention specifically of training requirements; however, the conduct of chiropractors is governed under Section 1285.240 Standards (Illinois Admin. Code). Interestingly, the rules governing the conduct of chiropractors are those of the medical profession and treat chiropractors as members of the medical profession (referring to them as chiropractic physicians). The rules do require that chiropractors act in ways that will not harm the public, breaches the physician's responsibility to a patient in accordance to medical standards of practice and not use any equipment on patients that have not been authorized for use in an approved research program pursuant to rules of the Illinois Department of Public Health authorizing research programs or as otherwise expressly authorized by law. More may be found at:

http://www.ildpr.com/WHO/ar/medicalr.asp

Iowa:

Iowa's administrative code governing conduct has no specific language requiring education prior to the use of a new therapy; however, there are requirements for chiropractors to be competent in their practice. Excerpts from their administrative code are as follows:

45.2 (2) Professional incompetence. Professional incompetence includes, but is not limited to:

a. A substantial lack of knowledge or ability to discharge professional obligations within the scope of practice.

b. A substantial deviation from the standards of learning or skill ordinarily possessed and applied by other chiropractic physicians in the state of Iowa acting in the same or similar circumstances.

c. A failure to exercise the degree of care which is ordinarily exercised by the average chiropractic physician acting in the same or similar circumstances.

d. Failure to conform to the minimal standard of acceptable and prevailing practice of a chiropractic physician in this state.

More may be found at:

http://www2.legis.state.ia.us/Rules/Current/645iac/65545/64545.pfd

Michigan:

Michigan's administrative code relating to rules governing the practice of chiropractic has no specific rules regulating professional conduct. The rules relating to actions against a Michigan chiropractic license holder are covered under Michigan Statutes: Chapter 333.16221 – 16226. More may be found at:

http://www.legislature.mi.gov/mileg.asp?page=executesearch

Minnesota:

Minnesota's statutes governing conduct has no specific language requiring education prior to the use of a new therapy; however, there are requirements for chiropractors to be competent in their practice. Excerpts from their administrative code are as follows:

From Minnesota statutes: 148.10 Licenses Revoked; New Licenses.

(11), unprofessional conduct means any unethical, deceptive or deleterious conduct or practice harmful to the public, any departure from or the failure to conform to the minimal standards of acceptable chiropractic practice, or a willful or careless disregard for the health, welfare or safety of patients, in any of which cases proof of actual injury need not be established. Unprofessional conduct shall include, but not be limited to, the following acts of a chiropractor:

(1) gross ignorance of, or incompetence in, the practice of chiropractic

More may be found at:

http://www.mn-chirboard.state.mn.us

Summary of factual data and analytical methodologies:

No study resulting in the collection of factual data was used in reference to this rule-making effort. The primary methodology for revising the rule is the board's ongoing analysis and determination that a rules change is necessary.

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

The Department of Regulation and Licensing has a small business review advisory committee (SBRAC) consisting of representatives of a variety of small business and geographic locations. This proposed rule was reviewed by the SBRAC and found that the rule would not have a significant economic impact on small business.

This conclusion is supported by an analysis by department staff. Licensed chiropractors are required to follow the Standards of Conduct Rules under ch. Chir 6 of the Wisconsin administrative code. The existing rules prevent licensed chiropractors from performing professional services inconsistent with their training, education or experience. Given the current pace of technological advancement, and the resulting marketing effort targeting practitioners, the existing rules governing professional conduct is amended by the board to clarify education and training requirements of chiropractors prior to application and/or incorporation of new technology-based therapies and treatments into their practice.

The incorporation and use of modern technology has always been and will be a part of patient care; however, the rules governing conduct should keep up with those applications, especially where they relate to existing rules of conduct for the protection of the public.

This proposed rule does not mandate any additional education or training with regards to new technology or treatments, unless chiropractors wish to incorporate those new treatments into their practice.

Anticipated costs incurred by private sector/fiscal estimate: The department finds that this rule has no significant fiscal effect on the private sector.

Fiscal estimate

The proposed rule will have no impact on the department's funds.

Effect on small business

These proposed rules will have no significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1), Stats. The Department's Regulatory Review Coordinator may be contacted by email at [e-mail], or by calling [phone].

Agency contact

Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935. Telephone: [phone]. Email: [e-mail].

TEXT OF RULE

SECTION 1. Chir 6.02 (6) is amended to read:

Chir 6.02 (6) Performing professional services inconsistent with training, education or experience. Prior to application to patients of new therapies or treatment modalities, a chiropractor shall obtain adequate and appropriate training and education. Such training and education may be obtained from coursework at an accredited college of chiropractic, or from a board-approved continuing education program or from a program sponsored by an organization listed in s. Chir 5.02 (1) (a).

Notice of Hearing

Chiropractic Examining Board

[CR 06-007]

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Chiropractic Examining Board in ss. 15.08 (5) (b). 227.11 (2) and 446.02 (2) (b), Stats., and interpreting s. 446.02 (1) (b) and (2) (a), Stats., the Chiropractic Examining Board will hold a public hearing at the time and place indicated below to consider an order to repeal ss. Chir 5.01 (1) (c) and (d) and 5.02 (3); to renumber and amend s. Chir 5.01 (3); and to create ss. Chir 5.01 (3) (b) to (e), 5.02 (1) (i), (4) (a) 8., a. and b., and (7), relating to continuing education credit and approval of continuing education programs.

Hearing Date, Time and Location

Date:   April 27, 2006

Time:   8:15 a.m.

Location:   1400 East Washington Avenue

  Room 121A

  Madison, Wisconsin

Appearances at the hearing

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to Pamela Haack, Paralegal, Department of Regulation and Licensing, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email at [e-mail]. Comments must be received on or before May 11, 2006 to be included in the record of rule-making proceedings.

Statutes interpreted: Section 446.02 (1) (b), Stats.

Statutory authority: Sections 15.08 (5) (b), 227.11 (2) and 446.02 (1) (b), Stats.

Explanation of agency authority:

The Chiropractic Examining Board has the authority under s. 446.02, Stats., to establish the requirements of continuing education for license renewal. Presently, those requirements are set forth in Chapter Chir 5. The proposed rule removes references to outdated requirements and provides for approval of non-classroom technology-based educational opportunities. This proposal is intended to allow chiropractors to take advantage of educational opportunities that are or will become available in non-classroom settings by advances in technology while maintaining the value of active participation and the assurances of assessment tools.

Related statute or rule:

There are no related statutes or rules other than those listed above.

Plain language analysis:

SECTION 1 repeals one-time ethics and radiology education requirements that were required for the 2003 to 2004 biennium.

SECTION 2 repeals language that requires the student to be physically present in the room in which the program is presented. The removal of this restriction is necessary to facilitate distance learning alternatives.

SECTION 3 establishes a limitation of 12 continuing education hours that may be obtained from technology-based non-classroom education programs. This SECTION requires that such programs must have a written assessment instrument to assure that the student actively participated and derived a benefit. This SECTION also allows in the case of extreme hardship for accumulation of more than 12 hours of non-classroom continuing education.

SECTION 4 sets forth the requirements of technology-based non-classroom continuing educational programs in addition to the requirements common to all continuing educational programs. These additional requirements include that the student must take a written assessment instrument and demonstrate that they actively participated in the program and demonstrate that they received a measurable benefit from their participation. These programs must also contain a reasonable security measure to assure that the enrolled student is the actual participant.

SECTION 5 repeals language authorizing non-classroom education in cases of extreme hardship because the language was recreated in SECTION 3.

SECTION 6 creates a requirement that the application for approval of technology-based non-classroom continuing education programs must contain information stating how the program will conduct the written assessment and what type of security measures are being used to fulfill the requirements of SECTION 4.

SECTION 7 restricts the approval period of continuing education programs for the biennium in which they are approved. Such a restriction assures that the information conveyed is current and the topic timely.

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

There is no proposed or existing federal regulation authorizing or restricting technology-based non-classroom continuing education programs for chiropractors.

Comparison with rules in adjacent states:

Illinois:

Continuing medical education must use materials such as CD-ROMs, printed educational materials, audiotapes, video cassettes, films, slides and computer assisted instruction that provide a clear, concise statement of the educational objectives and indicate the intended audience. These programs shall also have a method of verifying physicians' participation.

Iowa:

Iowa is currently promulgating a rule change to 645 IAC 44.03 that would allow continuing education credit for completing electronically transmitted programs/activities or independent study programs/activities that have a certificate of completion.

Michigan:

The state of Michigan does not address the setting in which continuing education programs may take place.

Minnesota:

2500.1550 ALTERNATIVES TO TRADITIONAL CLASSROOM PRESENTATION.

A chiropractor may obtain up to six units of the 20-unit annual requirement through alternatives to traditional classroom presentations. The programs must be approved by the board or a board-approved sponsor according to parts 2500.1200 to 2500.2000. The programs approved for continuing education credit under this part must include a written assessment instrument, designed to ensure that the chiropractor actively participated in the presentation of material and derived a measurable benefit from participation. For the purposes of this part, an instrument that provides a minimum of two questions from each unit of instruction, and of which 75 percent or more are correctly answered, satisfies this requirement.

Summary of factual data and analytical methodologies:

No study resulting in the collection of factual data was used in reference to this rule-making effort. The primary methodology for revising the rule is the board's ongoing analysis and determination that a rules change is necessary.

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

The Department of Regulation and Licensing has a small business review advisory committee (SBRAC) which consists of representatives of a variety of small business and geographic locations. This proposed rule was reviewed by the SBRAC and the SBRAC found that the rule would not have a significant economic impact on small business.

This conclusion is supported by an analysis by department staff. Licensed chiropractors are required to complete 40 hours of continuing education (CE) each biennium. Continuing education hours have traditionally only been available at locations near urban (higher population density) areas. The economics of hosting and presenting all day or multi-day presentations requires that CE providers attract a large number of attendees. This may cause significant financial burden in terms of travel expenses and lost income due to time away from the practice.

The use of modern technology (an example would be Internet-based CE courses) will offer chiropractors more educational opportunities while reducing travel and time away from office related costs.

This rule does not mandate that any CE provider offer non-traditional or technology-based CE, therefore, there would be no additional mandated expenses to CE providers.

Anticipated costs incurred by private sector/fiscal estimate:

The department finds that this rule has no significant fiscal effect on the private sector.

Effect on small business:

These proposed rules will have no significant economic impact on small businesses, as defined in s. 227.114 (1), Stats. The Department's Regulatory Review Coordinator may be contacted by email at [e-mail], or by calling [phone].

Agency contact

Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935. Telephone: [phone]. Email: [e-mail].

Place where comments are to be submitted and deadline for submission:. Comments must be received on or before May 11, 2006 to be included in the record of rule-making proceedings.

Comments may be submitted to Pamela Haack, Paralegal, Department of Regulation and Licensing, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email at [e-mail]. Comments must be received on or before May 11, 2006 to be included in the record of rule-making proceedings.

Notice of Hearing

Commerce

(Licenses, Certifications, etc., Ch. Comm 5)

[CR 06-031]

NOTICE IS HEREBY GIVEN that pursuant to chapters 101 and 145, Stats., the Department of Commerce will hold a public hearing on proposed rules under chapter Comm 5, relating to licenses, certifications and registrations.

The public hearing will be held as follows:

Date and Time: Thursday, April 27, 2006 at 1:00 p.m.

Location: 201 W. Washington Ave, Conference Room 3C, 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 May 5, 2006, 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 Jim Quast, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at [e-mail].

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

Analysis

Statutes Interpreted: Chapters 101 and 145, Stats., and 2005 Wisconsin Act 25

Statutory Authority: Chapters 101 and 145, Stats., and 2005 Wisconsin Act 25

Related Statute or Rule: None.

Explanation of Agency Authority: Chapter 101, Stats., authorizes the Department of Commerce to adopt reasonable and proper rules relative to the exercise of its powers and authorities, including the issuance and renewal of various credentials to businesses and individuals. Chapter 145, Stats., grants the Department authority to promulgate rules governing plumbers and automatic fire sprinkler system installers. 2005 Wisconsin Act 25 contains revisions to the credential terms for plumbers and automatic fire sprinkler system installers.

Summary of proposed rules: 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 issues that have occurred since the last update of chapter Comm 5. The definition of HVAC equipment and an exception for obtaining the HVAC contractor registration are being revised in order to clarify who must obtain the registration. The credential terms for automatic fire sprinkler system installers and plumbers are changed to 4 years. The respective credential fees and any required continuing education hours are adjusted accordingly. The experience requirements for qualifying for the examination for the commercial electrical inspector certification are removed. The proposed rules also include the creation of continuing education requirements for the renewal of the license as a utility contractor. The proposal also removes dates and date-dependent requirements which are no longer relevant.

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

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.

Comparison with rules in adjacent states.

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.

Summary of factual data and analytical methodologies.

There were no factual data or analytical methodologies used to develop the proposed rules.

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

The proposed rules should have a minimal effect on small business. There were no supporting documents used to determine the effect on small business, and an economic impact report was not prepared.

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 [e-mail], or at telephone [phone] or [phone] (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

Types of small businesses that will be affected by the rules: The rules will affect any business that obtains a credential from the department for an HVAC contractor, automatic fire sprinkler system installer, plumber, commercial electrical inspector, or utility contractor.

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

Types of professional skills necessary for compliance with the rules: There are no types of professional skills necessary for compliance with the rules.

Rules have a significant economic impact on small businesses: No. Rules not submitted to Small Business Regulatory Review Board.

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

Fiscal Estimate

The Safety and Buildings Division is responsible for administering and enforcing chapter Comm 5. The proposed rules contain changes in some of the Division's license and registration fees in correlation with the changes in the respective license and registration terms. Therefore, over a given period of time, the revenues collefted will be unchanged. Also, the proposed rules will not create any additional workload costs.

The proposed rules will not have a significant fiscal effect on the private sector. The higher initial fees will be offset by the longer credential terms.

Notice of Hearing

Kicapoo Reserve Management Board

[CR 06-029]

NOTICE IS HEREBY GIVEN that pursuant to s. 41.41 (7) (k), States., the Kickapoo Reserve Management Board will hold a public hearing at the time and place shown below to consider amending s. KB 1.09 (8) relating to capacity limits at camping areas and s. KB 1.10 regarding fees for hunting and fishing within the Kickapoo Valley Reserve.

Hearing Information

The public hearing will be held in the Kickapoo Valley Reserve Visitor Center meeting room; S.3661 Highway 131, La Farge, Wisconsin on Tuesday, April 25, 2006 beginning at 6:00 p.m. Copies of the Hearing Notice, complete rule text and other information regarding the Kickapoo Valley Reserve is available via the agency website: http://kvr.state.wi.us through the contact information listed below.

Written Comments

Written comments on the proposed rule amendment may be sent to the contact person by April 30, 2006. Written comments will receive the same consideration as oral testimony presented at the hearing.

Analysis Prepared by the Kickapoo Reserve Management Board

Statutory authority: s. 41.31 (7) (j), Stats.

Statutes interpreted: s. 41.41, Stats.

The Kickapoo Reserve Management Board (KRMB) was created in 1994 to manage the 8,569 - acre Kickapoo Valley Reserve (Reserve). Under a joint management agreement with the Ho-Chunk Nation, the KRMB administers the objective set forth in s. 41.41 to: “preserve and enhance its unique environmental, scenic and cultural features, to provide facilities for the use and enjoyment of visitors to the reserve and to promote the reserve as a destination for vacationing and recreation."

Under current rules (s. KB 1.09(8)) the Board limited the number of persons at one campsite to six people. The KRMB in working with the Department of Health and Family Services in the administration of campground rules allow for a variety of campsite sizes that have appropriate capacity limits based on specific area. The KRMB is seeking to eliminate the “6 person" limit of the current rule to allow for campsite capacity limits to be posted accurately on site. Also, KB 1.10 exempts persons who hunt, fish or trap from paying a fee to the Reserve. The amended rule would eliminate that exemption.

Text of Rule

Section 1. s. KB 1.09(8) is amended to read:

No more than one camping party is permitted at any camping site in the reserve. A camping party that includes persons other than immediate family members may not exceed posted capacity limits except a camping party that receives a permit to camp at a group campsite.

Section 2. s. KB 1.10 (1) is amended to read:

All users of the reserve are required to pay either annual, camping, day use or event fees.

Initial Regulatory Flexibility Analysis

The proposed rule will does not have a significant fiscal impact on governmental entities.

Fiscal Estimate

The proposed rule does not have a significant fiscal impact.

Contact Person

For additional information, copies of the proposed rules or to submit comments in writing contact:

Marcy West, Executive Director

Kickapoo Valley Reserve

S.3661 Highway 131

La Farge, Wisconsin 54639

Phone: [phone]

Fax: [phone]

Email: [e-mail]

Notice of Hearing

Regulation and Licensing

[CR 06-033]

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in ss. 227.11 (2), 458.03 (1) (b) and 458.085, Stats., and interpreting ss. 458.06, 458.08 and 458.13, Stats., the Department of Regulation and Licensing will hold a public hearing at the time and place indicated below to consider an order to repeal RL 80.03 (1a), (1b), (7g) (a) and (b), 81.02 (6), 83.01 (4) (a), 84.01 (2), (5), (6) (a) (intro.), 1., 2., 3., (b) (intro.), 1., 2., 3., the Note following RL 84.01 (6) (b) 3., (c) (intro.), 1. and 2. and (13), 85.02 (7) (a) (intro.), 1., 2., (b) (intro.), 1., 2., 3., (c) (intro.), 1., 2., 3., the Note following RL 85.02 (7) (c) 3., (d) (intro.), 1. and 2. and (11); to renumber and amend RL 80.03 (7g) (intro.), 84.01 (6) (intro.), 84.02, 84.03, 84.04, 85.02 (2) and (7) (intro.); to amend RL 80.03 (3), (9) and (13), 81.01, 81.02 (intro.), (3), (7), the Note following RL 81.02 (8), 81.03 (1) (title), (intro.), (c), (2) (intro.), (a), the Note following RL 81.03 (2) (d), the Note following RL 81.04 (1) (a), 81.04 (1) (c) (intro.) and 1., 81.05 (1) (title) and (2) (title), 82.01 (6), 83.01 (3) (intro.), (a) and (b), (4) (b), the Note following RL 83.01 (4) (c), 83.02 (2), 84.01 (1), (7) (b) and (c), (9) (d) and (e), (12) and the Note following RL 84.01 (12), 85.01 (1), (1m), (2), (3) and (5), 85.02 (1), (6), (8) (b) and (c), the Note following RL 85.02 (8) (d), (10), the Note following RL 85.02 (10), 86.01 (1), (2), (4) and (10), 87.01 (1), (2) and (3) and 87.02 (1), (2) (intro.) and (b); to repeal and recreate RL 80.03 (10), 84.01 (7) (e) and 85.02 (8) (e); and to create RL 80.03 (4m), a Note following RL 81.02 (5), 83.01 (3) (f) and (3m), a Note following RL 84.01 (6), 85.02 (2) (a) to (m), a Note following RL 85.02 (7), 86.01 (11) and 87.02 (2) (c), relating to definitions, experience, educational courses, continuing education, conduct and renewal for real estate appraisers.

Hearing Date, Time and Location

Date:   May 10, 2006

Time:   9:15 A.M.

Location:   1400 East Washington Avenue

  Room 121C

  (Enter at 55 Dickinson Street)

  Madison, Wisconsin

Appearances at the Hearing

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to the Department of Regulation and Licensing, Office of Legal Council, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708, or by e-mail to [e-mail]. Written comments must be received by May 22, 2006, to be included in the record of rule-making proceedings.

Analysis prepared by the Department of Regulation and Licensing

Statutes interpreted: Sections 458.06, 458.08 and 458.13, Stats.

Statutory authority: Sections 227.11 (2), 458.03 (1) (b) and 458.085, Stats.

Explanation of agency authority: The Department of Regulation and Licensing is authorized under ss. 458.03 (1) (b) and 458.085, Stats., to promulgate rules establishing the criteria for the approval of educational programs and experience requirements for licensed and certified appraisers.

Related statute or rule: The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 USC 3331 et seq.

Plain language analysis:

SECTION 1. In s. RL 80.03 (1a), the department repeals the definition of “ad valorem tax appraisal" and replaces it with the definition of “mass appraisal." The definition of “mass appraisal," which is created in SECTION 7, is more commonly used in the profession. Section RL 80.03 (1b), which contains the definition of “affidavit," is being repealed because the department no longer requires applicants to submit affidavits verifying appraisal experience.

SECTION 2. In s. RL 80.03 (3), the department amends the definition of “appraiser experience," to include the types of experience that it will accept for purposes of granting appraiser credentials. This change reflects the revisions made by the Appraiser Qualifications Board (“AQB") of the Appraisal Foundation to the Real Property Appraiser Qualification Criteria and Interpretations of the Criteria.

SECTION 3. Section RL 80.03 (4m) is being created to define “class hour" to mean 60 minutes, of which at least 50 minutes are instruction attended by the student. This definition replaces the definition of “hour of instruction" found in s. RL 80.03 (10), which is being repealed and recreated in SECTION 7.

SECTION 4. Section RL 80.03 (7g) (intro.) is renumbered s. RL 80.03 (7g) and is being amended to define distance education to mean any education process based on the geographical separation of student and instructor. This change reflects the revisions made by the Appraiser Qualifications Board (“AQB") of the Appraisal Foundation to the Real Property Appraiser Qualification Criteria and Interpretations of the Criteria.

SECTION 5. Refer to comments under SECTION 4 above.

SECTION 6. Section RL 80.03 (9) is being amended to make a minor correction.

SECTION 7. Refer to comments under SECTION 1 above.

SECTION 8. In s. RL 80.03 (13), the definition of “real estate consulting" is being revised to make a minor change to the rule.

SECTION 9. Section RL 81.01 is being amended to omit the references to sub. (1), because starting January 1, 2008, applicants may be required to satisfy additional educational requirements that are set forth in other subsections of the rules. Refer to SECTIONS 37, 38 and 39.

SECTION 10. Section RL 81.02 (intro.) is being amended to reduce the amount of time that applicants will be required to comply with a request for information related to an application from one year to 120 calendar days. At the expiration of the 120 day period, applicants will be required to file a new application and fee if certification or licensure is sought at a later date.

SECTION 11. A note following s. RL 81.02 (5) is being created to set forth the amount of time that applicants will be allowed to take and pass the state and national examinations and to complete all other requirements for licensure or certification. This change reflects the revisions made by the Appraiser Qualifications Board (“AQB") of the Appraisal Foundation to the Real Property Appraiser Qualification Criteria and Interpretations of the Criteria.

SECTION 12. Section RL 81.02 (6) is being repealed because the department will no longer require an applicant to submit an affidavit verifying appraisal experience.

SECTION 13. Section RL 81.02 (7) is being amended to make a minor change.

SECTION 14. The Note following s. RL 81.02 (8) is being amended to state that applications are available on the department's website.

SECTION 15. Section RL 81.03 (1) (intro.) is being amended to clarify that an appraiser who applies for a temporary registration must hold a credential in another state that is not currently limited, suspended or revoked. Section RL 81.03 (1) (c) is being amended to correct the statute citation.

SECTION 16. Refer to SECTION 10 above.

SECTION 17. Refer to SECTION 14 above.

SECTION 18. Refer to SECTION 14 above.

SECTION 19. Section RL 81.04 (1) (c) 1. is being amended to clarify that an appraiser who applies for a reciprocal credential must hold a credential in another state that is not currently limited, suspended or revoked.

SECTION 20. Section RL 81.05 (1) (title) and (2) (title) are being amended to make minor changes.

SECTION 21. Section RL 82.01 (6) is being amended to omit the references to sub. (1), because starting January 1, 2008, applicants may be required to satisfy additional educational requirements that are set forth in other sections of the rules. Refer to SECTIONS 37, 38 and 39.

SECTION 22. Section RL 83.01 (3) is being amended to make minor and technical changes to the rules. See, also, SECTION 2 above.

SECTION 23. Section RL 83.01 (3) (f) is being created to clarify that an applicant may claim no more than 50% of appraisal experience gained without a client. Section RL 83.01 (3m) is being created to state that an applicant who fails to complete the experience hours required for licensure or certification prior to January 1, 2008, may claim only those hours acquired after January 30, 1989. These changes reflect revisions made by the Appraiser Qualifications Board (“AQB") of the Appraisal Foundation to the Real Property Appraiser Qualification Criteria and Interpretations of the Criteria.

SECTION 24. Section RL 83.01 (4) (a) is being repealed because the department will no longer require an applicant to submit an affidavit verifying appraisal experience. See, also, SECTION 12 above.

SECTION 25. Section RL 83.01 (4) (b) is being amended to make a minor change.

SECTION 26. The Note following s. RL 83.01 (4) (c) is being amended to state that applications are available on the department's website.

SECTION 27. Section RL 83.02 (2) is being amended because the department no longer requires applicants to submit affidavits verifying appraisal experience. See, also, SECTIONS 12 and 24 above.

SECTION 28. Section RL 84.01 (1) is being amended to reflect that the department no longer accepts courses approved for college credit by the American Council on Education. See, also, SECTION 36.

SECTION 29. Section RL 84.01 (5) is being repealed to reflect that the department no longer accepts courses obtained through challenge examinations.

SECTION 30. Section RL 84.01 (6) (intro.) is being renumbered s. RL 84.01 (6) and is being amended to reflect that the criteria for granting credit for distance education will be based upon the requirements for continuing education courses established by the AQB that are in effect at the time a course is completed.

SECTION 31. Section RL 84.01 (6) (a) (intro.), 1., 2., 3., and the other related provisions are being repealed for the reason stated in SECTION 30 above.

SECTION 32. The Note following s. RL 84.01 (6) is being created to include the website address for the AQB.

SECTION 33. Section RL 84.01 (7) (b) is being amended to include the types of experience that the department will accept for purposes of granting appraiser credentials. See, also, SECTION 2 above. Section RL 84.01 (7) (c) is being amended to clarify that assessor educational programs must be pertinent to appraisal practice in order for the programs to receive approval.

SECTION 34. Section RL 84.01 (7) (e) is being repealed to reflect that the department no longer accepts courses approved for college credit by the American Council on Education. See, also, SECTION 28 above. Section RL 84.01 (7) (e) is being recreated to state that in order for an individual to be approved as an instructor to teach the 15-hour National USPAP Course or its equivalent, the individual must be a certified residential or general appraiser, and be certified by the AQB as an instructor to teach that course. This revision reflects changes made by the Appraiser Qualifications Board (“AQB") of the Appraisal Foundation to the Real Property Appraiser Qualification Criteria and Interpretations of the Criteria.

SECTION 35. Section RL 84.01 (9) and (12) are being amended to make minor changes to the rules.

SECTION 36. Section RL 84.01 (13) is being repealed to reflect that the department no longer accepts courses approved for college credit by the American Council on Education. See, also, SECTION 28 above.

SECTION 37. Section RL 84.02 is renumbered s. RL 84.03 and is being amended to state that an applicant who fails to complete the 120 class hours before January 1, 2008, will be required to complete the educational requirements set forth in s. RL 84.03 (4). Section RL 84.03 (4) requires an individual who applies for a certified residential appraiser credential after January 1, 2008, to submit evidence of completion of 200 class hours and an associate degree or equivalent education. This amendment reflects revisions made by the Appraiser Qualifications Board (“AQB") of the Appraisal Foundation to the Real Property Appraiser Qualification Criteria and Interpretations of the Criteria.

SECTION 38. Section RL 84.03 is renumbered s. RL 84.04 and is being amended to state that an applicant who fails to complete the 180 class hours before January 1, 2008, will be required to complete the educational requirements set forth in s. RL 84.04 (4). Section RL 84.04 (4) requires an individual who applies for a certified general appraiser credential after January 1, 2008, to submit evidence of completion of 300 class hours and a bachelor's degree or equivalent education. This amendment reflects revisions made by the Appraiser Qualifications Board (“AQB") of the Appraisal Foundation to the Real Property Appraiser Qualification Criteria and Interpretations of the Criteria.

SECTION 39. Section RL 84.04 is renumbered s. RL 84.02 and is being amended to state that an applicant who fails to complete the 90 class hours before January 1, 2008, will be required to complete the educational requirements set forth in s. RL 84.02 (4). Section RL 84.02 (4) requires an individual who applies for a licensed appraiser credential after January 1, 2008, to submit evidence of completion of 150 class hours of education. This amendment reflects revisions made by the Appraiser Qualifications Board (“AQB") of the Appraisal Foundation to the Real Property Appraiser Qualification Criteria and Interpretations of the Criteria.

SECTION 40. Section RL 85.01 (1), (1m), (2), (3) and (5) are being amended to make minor changes to the rules.

SECTION 41. Section RL 85.02 (1) is being amended to delete the reference to sub. (11). The amendment reflects that the department no longer accepts courses approved for college credit by the American Council on Education. See, also, SECTIONS 28 and 34 above.

SECTION 42. Section RL 85.02 (2) is renumbered s. RL 85.02 (2) (intro.) and is being amended to reflect that the department will approve only continuing education courses that relate to specific topics or subject areas.

SECTION 43. Section RL 85.02 (2) (a) to (m) are being created to identify the continuing education topics or subject areas that the department will approve. Refer, also, to SECTION 42 above.

SECTION 44. Section RL 85.02 (6) is being amended to make a minor change to the rules.

SECTION 45. Section RL 85.02 (7) (intro.) is renumbered s. RL 85.02 (7) and is being amended to reflect that the criteria for granting credit for distance education will be based upon the requirements for continuing education courses established by the AQB that are in effect at the time a course is completed. See, also, SECTION 30 above.

SECTION 46. Section RL 85.02 (7) (a) (intro,), 1., 2., and the other related provisions are being repealed for the reason stated in SECTION 45 above.

SECTION 47. A Note following s. RL 85.02 (7) is being created to make a minor change to the rules.

SECTION 48. Section RL 85.02 (8) (b) and (c) are being amended to make minor changes to the rules.

SECTION 49. The Note following s. RL 85.02 (8) (d) is being amended to make a minor change to the rules.

SECTION 50. Section RL 85.02 (8) (e) is being repealed to reflect that the department no longer accepts courses approved for college credit by the American Council on education. See, also, SECTIONS 28 and 36 above. Section RL 85.02 (8) (e) is being recreated to state that in order for an individual to be approved as an instructor to teach the 7-hour National USPAP Update Course or its equivalent, the individual must be a certified residential or general appraiser, and be certified by the AQB as an instructor to teach that course. This revision reflects changes made by the Appraiser Qualifications Board (“AQB") of the Appraisal Foundation to the Real Property Appraiser Qualification Criteria and Interpretations of the Criteria.

SECTION 51. Section RL 85.02 (10) and the Note following s. RL 85.02 (10) are being amended to make minor changes to the rules.

SECTION 52. Section RL 85.02 (11) is being repealed to reflect that the department no longer accepts courses approved for college credit by the American Council on Education. See, also, SECTIONS 28, 36 and 50 above.

SECTION 53. Section RL 86.01 (1), (2), (4) and (10) are being amended to make minor and technical changes to the rules.

SECTION 54. Section RL 86.01 (11) is being created to state that all certified and licensed appraisers shall comply with state and federal laws that substantially relate to the practice of real estate appraising. In reference to federal laws, this provision would require appraisers to comply with FIRREA as well as federal regulations promulgated by the federal financial institutions regulatory agencies (the Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency, Office of Thrift Supervision and the National Credit Union Administration).

SECTION 55. Section RL 87.01 (1) to (3) is being amended to make minor and technical changes to the rules.

SECTION 56. Section RL 87.02 (1), (2) (intro.) and (b) are being amended to make minor and technical changes to the rules.

SECTION 57. Section RL 87.02 (2) (c) is being created to make a minor change to the rules.

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

A. Federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA").

(1) In general:

The FIRREA, 12 U.S.C. 3331 et seq. (Title XI) was enacted in 1989. Under FIRREA, insured financial institutions and insured credit unions are required to obtain the services of a state certified or licensed appraiser for appraisals conducted in connection with “federally related transactions."

Under FIRREA, the Appraisal Subcommittee of the Federal Financial Institutions Examination Council is required to monitor state appraiser certifying and licensing agencies for the purpose of determining whether a state agency's policies, practices, and procedures are consistent with the federal law. The Appraisal Subcommittee may not recognize appraiser certifications and licenses from states whose appraisal policies, practices, or procedures are found to be inconsistent with FIRREA. Before refusing to recognize a state's appraiser certifications or licenses, the Appraisal Subcommittee must provide that state's certifying and licensing agency with a written notice of its intentions not to recognize the state's certified or licensed appraisers and ample opportunity to provide rebuttal information or to correct the conditions causing the refusal. A decision of the Subcommittee to refuse to recognize a state's appraiser certifications or licenses is subject to judicial review. 12 U.S.C. 3331 et seq.

In 1997, the Appraisal Subcommittee adopted the Policy Statements Regarding State Certification and Licensing of Real Estate Appraisers, which all states comply with. [The Appraisal Subcommittee's Policy Statements are available at http://www.asc.gov.]

(2) Appraisal Qualifications:

Under FIRREA, the state criteria for the qualifications of certified real estate appraisers must meet the minimum qualifications criteria for certification established by the Appraiser Qualifications Board (AQB) of the Appraisal Foundation. The minimum qualifications criteria established by the AQB are set forth in the Real Property Appraiser Qualification Criteria and Interpretations of the Criteria (“Criteria"). The AQB Criteria includes the minimum experience, examination, qualifying education and continuing education requirements that must be satisfied by an individual in order to obtain and maintain a certified appraisal credential. [The AQB Criteria is available on the Internet at http://www.appraisalfoundation.org.]

Under FIRREA, the states may establish their own qualifications and requirements for licensed appraiser credentials. The states are not obligated to adopt the minimum experience, examination, education and continuing education requirements recommended by AQB for the licensure of real estate appraisers. However, the Appraisal Subcommittee recommends that all states adopt the AQB Criteria established for licensed appraisers. The Department of Regulation and Licensing has adopted substantially all of the requirements set forth in the AQB Criteria established for the licensure of real estate appraisers.

Comparison with rules in adjacent states:

Under FIRREA (Federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989), all states, including Illinois, Iowa, Indiana, Michigan and Minnesota, that certify real estate appraisers for purposes of conducting appraisals in federally related transactions must assure compliance with the AQB (Appraiser Qualifications Board) Criteria for the licensure of real estate appraisers.

Summary of factual data and analytical methodologies:

No study resulting in the collection of factual data was used relating to this rule. The primary methodology for revising the rule is the department's analysis and determination that a rule change is necessary.

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

The proposed rule-making would change rules related to education and experience requirements for real estate appraisers. Included among these rules are the amount of time applicants will be allowed to complete all requirements for licensure, the types of experience the department will accept for granting appraiser credentials, and the types of continuing education the department will approve. There are 1940 licensed appraisers, 1454 certified residential appraisers, and 1375 certified general appraisers who are licensed in Wisconsin and would have to comply with the standards, in addition to applicants. Of the appraisers who are licensed in Wisconsin, a majority of them probably work in small businesses.

For applicants who do not complete their education before 2008 there will be an increase in education to be paid for. Licensed appraisers will be required to obtain 150 hours instead of the previous requirement of 90 hours of education. This is a 66% increase in appraisal education to be paid for.

Certified residential appraisers will be required to obtain 200 hours instead of the previous requirement of 120 hours of education. This is a 66% increase in appraisal education to be paid for. Also, there will be an additional requirement of an associate degree or 21 semester credit hours in specific content areas. It is not likely that those without the degree will obtain the degree merely for this credential, but it is possible.

Certified general appraisers will be required to obtain 300 hours instead of the previous requirement of 180 hours of education. This is a 66% increase in appraisal education to be paid for. Also, there will be an additional requirement of a bachelor's degree or 30 semester credit hours in specific content areas. It is not likely that those without the degree will obtain the degree merely for this credential, but it is possible.

There will be no additional reporting requirements or bookkeeping requirements. Starting January 1, 2008, new educational requirements will need to be satisfied as stated in the rules. This will be an additional compliance cost for applicants. The additional cost amount is difficult to determine, but should not result in a significant cost impact on small business.

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

Anticipated costs incurred by private sector:

The department finds that this rule has no significant fiscal effect on the private sector.

Fiscal estimate

The change in requirements will result in minimal costs to the department.

Effect on small business

These proposed rules will have no significant economic impact on small businesses, as defined in s. 227.114 (1), Stats. The Department's Regulatory Review Coordinator may be contacted by email at [e-mail], or by calling [phone].

Agency contact person

Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935. Telephone: [phone]. Email: [e-mail].

Place where comments are to be submitted and deadline for submission

Comments may be submitted to Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935; email [e-mail]. Comments must be received on or before May 22, 2006 to be included in the record of rule-making proceedings.

Notice of Hearing

Workforce Development

(Unemployment Compensation, Chs. DWD 100-150)

[CR 06-032]

NOTICE IS HEREBY GIVEN that pursuant to Sections 108.14 (2) and 227.11, Stats., the Department of Workforce Development proposes to hold a public hearing to consider the creation of rules relating to unemployment insurance and temporary help employers and affecting small businesses.

Hearing Information

Monday, May 1, 2006 at 1:30 p.m.

GEF 1 Building, H306

201 E. Washington Avenue

Madison

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

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

Analysis Prepared by the Department of Workforce Development

Statutory authority: This rule making amends ch. Trans 152, relating to Wisconsin Interstate Fuel Tax and International Registration Plan programs. The rule making clarifies Department policies regarding application requirements, business location, collections, and overdue billings. The rule making also reflects a statutory change in 1999 Wis. Act 145 that transfers appeals of certain determinations of the Department of Transportation from the Division of Hearings and Appeals to the Tax Appeals Commission..

Statutes interpreted: Sections 108.04 (7), 108.04 (8)

Related statutes: Sections 108.02 (24m) and 108.065, Stats.

Explanation of agency authority. Section 108.14 (2), Stats., provides that the Department may adopt and enforce all rules which it finds necessary or suitable to carry out Chapter 108, Stats., regarding unemployment insurance. Section 108.04 (7), Stats., provides that if an employee terminates work with an employing unit, the employee is ineligible for unemployment insurance except under certain conditions. Section 108.04 (8), Stats., provides that if an employee fails, without good cause, to accept suitable work when offered, the employee is ineligible for unemployment insurance except under certain conditions.

Summary of the proposed rule. For the purpose of unemployment insurance, an employment relationship normally ends when an employee is laid off without a definite return-to-work date, even if recall is anticipated. If a subsequent offer is refused, it is considered a refusal of new work under s. 108.04 (8), Stats. The employment relationship between a temporary help agency and its employees does not follow the patterns that apply to most other employment relationships. In the temporary help industry, it is common for employees to be assigned to a series of assignments at different locations with different duties, wages, and other conditions. It is also common for these assignments to end with little or no notice to either the employee or the employer. While the parties may fully intend to continue the relationship, the short notice that an assignment has ended may require that a short period of time pass before the employer is able to send the employee to the next assignment. This proposed rule establishes standards for determining whether the employment relationship continues or is terminated for the purpose of unemployment insurance benefit eligibility.

When an assignment from a temporary help employer ends, an employee is eligible for unemployment insurance benefits while the employment relationship continues between assignments, if he or she is otherwise qualified. Under the proposed rule, the employment relationship between a temporary help employer and the employee is considered to be a continuing relationship if all of the following conditions are met:

On or before the end of the first full business day after the end of an assignment, the employee contacts the employer, or the employer contacts the employee, and informs the other that the assignment has ended. The department may waive this deadline if it determines that the employer or employee's failure to communicate was for good cause and the employer and employee have otherwise acted in a manner consistent with the continuation of the employment relationship.

On or before the end of the first full business day after the end of an assignment, the employer informs the employee that the employer will provide a new assignment that will begin within 7 days and either the employer provides a new assignment that does begin within 7 days or, within that same 7-day period, the employer notifies the employee of a delay in the start of the new assignment or notifies the employee of another assignment that will begin within 7 days of the new notice and the delayed or other assignment does begin within those 7 days.

The assignment offered by the employer meets the conditions under which the individual offered to work, including the type of work, rate of pay, days and hours of availability, distance willing to travel to work, and available modes of transportation, as set forth in the individual's written application for employment with the employer submitted prior to the first assignment, or as subsequently amended by mutual agreement. The employer has the burden of proof to show that the assignment meets these requirements.

Chapter 108, Stats., provides that an employee is ineligible for unemployment insurance if the employee voluntarily separated from the employment, unless certain exceptions apply. Under the proposed rule, the employment relationship between a temporary help employer and the employee is considered to be voluntarily separated by the employee when any of the following occur:

The employee fails to notify the employer that an assignment has ended if the employer's policy requires such notification and the employee had notice of this policy prior to the end of the assignment, provided that the employer is not aware that the assignment has ended.

The employee refuses an assignment while the employment relationship continues.

The employee fails to respond to an offer of work by the employer while the employment relationship continues.

The employer is unable to communicate an offer of work to the employee because of the employee's failure to provide the employer with a correct address, telephone number, or other contact information while the employment relationship continues.

Any other circumstances that would be considered separation by the employee under Chapter 108, Stats.

If an employment relationship does not continue under the terms of the proposed rule, the employment shall be considered separated by the employer unless the employee has voluntarily separated from the employment as provided in the list above or any other provision of Chapter 108, Stats.

When the employment relationship terminates, the employee's application for employment shall expire. If the employee returns to work for the employer, a new application for employment will be required for this chapter to be applicable. If the employee agrees in writing, the original application may be treated as a new application for employment.

Summary of factual data and analytical methodologies. In 1994 the Department responded to concerns expressed by temporary help employers and adopted a policy that considers the employment relationship between a temporary help employer and its employee to continue for a maximum of 14 days after the last day of work while the employer looks for another assignment for the employee, provided the employer guaranteed the employee an assignment to begin within that time period. Refused assignments during that 14-day extension period are considered separations by the employee.

The proposed Chapter DWD 133 codifies the informal policy that is currently in place, with minor adjustments. The proposed rule provides for an extension of the employment relationship while the employer finds a new assignment for the employee, provided that future offers of work are within the confines of the application for employment. The application for employment will be treated as a quasi-employment contract. This provides protection for the employer and the employee as both parties are put on notice as to what type of work will continue the employment relationship. If a subsequent assignment made within the confines of the application for employment is refused during the extension period, the employee is considered to have separated because the employment relationship is considered to still exist.

Comparison with federal law. There is no federal unemployment insurance law that specifically covers treatment of employees of temporary help companies.

Comparison with rules in adjacent states. Minnesota. An individual who within 5 calendar days after completion of a suitable temporary job assignment fails without good cause to affirmatively request an additional job assignment or refuses without good cause an additional suitable job assignment offered shall be considered to have quit employment. This provision applies only if at the beginning of employment with the temporary help company, the applicant signed and was provided a copy of a separate document that informed the applicant of this paragraph and that unemployment benefits may be affected.

Iowa:

An individual who fails without good cause to notify the temporary help company of the completion of an assignment and seek reassignment within 3 working days shall be considered to have voluntary quit employment, unless the individual was not advised in writing of the duty to notify the temporary help company of the completion of an assignment.

Michigan:

An individual is disqualified from receiving benefits if the temporary help company provided the employee with written notice before the employee began performing services stating that within 7 days after completion of an assignment the employee must notify the temporary help company and failure to provide notice of completion of an assignment constitutes a voluntary quit that will affect the employee's eligibility for unemployment insurance and the employee did in fact not notify the temporary help company of completion of the assignment within 7 days.

Illinois:

There is a rebuttable presumption that an individual is not actively seeking work if the individual was last employed by a temporary help company and the temporary help company alleges that during the week for which the individual claimed benefits, he or she did not contact the temporary help company for an assignment. The presumption is rebutted if the individual shows that he or she did contact the temporary help company or that he or she had good cause for failure to contact the temporary help company for an assignment.

Effect on small business. The proposed rule will affect temporary help employers, some of which are small businesses. Using the best data available, the Department estimates that the number of temporary help employers in 2004 was 721. Of these, 203 had a monthly average of 1-25 employees but may involve a larger number of individuals given the temporary nature of employment provided.

There are no reporting, bookkeeping, or other procedures required for compliance with the proposed rule and no professional skills are required. The proposed rule was developed in consultation with the temporary help industry and reflects current best practices in the industry.

The Department's Small Business Regulatory Coordinator:

Jennifer Jirschele

[phone]

[e-mail].

Analysis and supporting documents used to determine effect on small business. There is no data available that allows the Department to accurately determine the number of temporary help employers that meet the definition of small business in s. 227.114 (1), Stats. The data that is available on a business entity's number of employees is from the Quarterly Census of Employment and Wages (QCEW) program, which is based on UI reports and Multiple Worksite Reports (MWR). When available, MWRs provide a disaggregation of data. The data does not identify if a business is independently owned and operated, if employees are full-time or part-time, or if a business is dominant in its field.

The Department requested information on the number of temporary help employers that have gross annual sales of less than $5 million from the Department of Revenue, but they were unable to provide it.

Fiscal Effect

The rule reflects current best practices in the temporary help industry and is not expected to qualify or disqualify more claimants of employers following these practices.

Contact Information

The proposed rules are available at the web site http://adminrules.wisconsin.gov by typing “unemployment insurance and temporary help employers" in the search engine. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule by contacting:

Elaine Pridgen

Office of Legal Counsel

Dept. of Workforce Development

P.O. Box 7946

Madison, WI 53707-7946

[phone]

[e-mail]

Written comments. Written comments on the proposed rules received at the above address, email, or through the http://adminrules.wisconsin.gov web site no later than May 3, 2006, will be given the same consideration as testimony presented at the hearing.