Rule-making notices
Notice of Hearing
Agriculture, Trade and Consumer Protection
The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on its emergency rule, s.
ATCP 21.20, Wis. Adm. Code, relating to voluntary certification of firewood dealers.
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 emergency rule. Following the public hearing, the hearing record will remain open until Tuesday, July 9, 2007 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, to
Robert.dahl@datcp. state.wi.us or at
https://apps4.dhfs.state.wi.us/admrules/ public/home.
You may obtain a free copy of this emergency rule 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) 224-4573 or emailing
robert.dahl@datcp.state.wi.us. Copies will also be available at the hearing. To view the emergency rule online, go to:
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
Keeley.Moll@datcp.state.wi.us or by telephone at (608) 224-5039.
Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by June 25, 2007, by writing to Deb Bollig, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone (608) 224-4584. Alternatively, you may contact the DATCP TDD at (608) 224-5058. The hearing facility is handicap accessible.
Hearing Date and Location
Tuesday, June 26, 2007
1:00 p.m. to 3:00 p.m.
Dept. of Agriculture, Trade and Consumer Protection
2811 Agriculture Drive, Board Room (CR-106)
Madison, Wisconsin, 53718-6777
Analysis Prepared by Dept. of Agriculture, Trade and Consumer Protection
This emergency rule creates a voluntary certification program for firewood dealers. Under this rule, the Department of Agriculture, Trade and Consumer Protection (“DATCP") may certify firewood dealers who agree to treat firewood according to rule standards to eliminate potential infestations of Emerald Ash Borer and other pests. A firewood dealer is not required to be certified under this rule in order to sell firewood in this state.
DATCP is adopting this temporary emergency rule pending the adoption of “permanent" rules on the same subject. This emergency rule will take effect immediately upon publication in the official state newspaper, and will remain in effect for 150 days. The Legislature's Joint Committee for Review of Administrative Rules may extend the emergency rule for up to 120 additional days.
The Wisconsin Department of Agriculture, Trade and Consumer Protection (“DATCP") has broad general authority, under s.
93.07(1), Stats., to interpret laws under its jurisdiction. DATCP has broad general authority, under ss.
93.06(1p),
93.07(12) and
94.01, Stats., to adopt regulations to prevent and control plant pest infestations. The voluntary certification program created by this rule is part of an overall state strategy to prevent and control plant pest infestations, including Emerald Ash Borer infestations.
Background. Emerald Ash Borer and other major pests are carried by firewood. The Wisconsin Department of Natural Resources (DNR) has adopted rules, under NR 45, to restrict the entry of firewood into Wisconsin state parks. The DNR rules prohibit, in state parks, firewood originating from outside this state. The DNR rules also prohibit firewood originating more than 50 miles from the state park unless the firewood originates from a firewood dealer who is certified by DATCP.
This rule creates a DATCP program for certification of firewood dealers. Firewood dealers certified under this rule could supply firewood to Wisconsin state parks. The certification program would be open to all firewood dealers in the state, regardless of whether they supply firewood to Wisconsin state parks. Certified firewood dealers must comply with this rule. A firewood dealer is not required to be certified under this rule in order to sell firewood in this state.
Emergency Rule. Under this emergency rule, DATCP may annually certify a firewood dealer. An annual certification expires on December 31 of each year. A firewood dealer is not required to be certified in order to sell or distribute firewood in this state. There is no charge for certification. Certification permits a firewood dealer to supply firewood to Wisconsin state parks, pursuant to NR 45.04 (1) (g).
DATCP may certify a firewood dealer if all of the following apply:
• The firewood dealer submits a complete application that complies with this rule.
• DATCP inspects all of the business premises identified in the certification application and determines, based on that inspection, that the firewood dealer is equipped to fulfill all of the representations included in the certification application.
A certification application must include all of the following:
• The correct legal name of the firewood dealer, and any trade names under which the firewood dealer sells or distributes firewood in this state.
The address of the firewood dealer's business headquarters.
The address of every business location from which the firewood dealer sells or distributes firewood in this state.
The approximate annual volume of firewood that the firewood dealer sells or distributes in this state, including the approximate annual volume sold or distributed from each business location.
The sources from which the firewood dealer obtains firewood for sale or distribution in this state. The application shall include the name and address of each person, if any, from whom the firewood dealer procures cut firewood.
A certification application must also include the following statement (the firewood dealer must notify DATCP if, at any time before or after the firewood dealer is certified, the statement is no longer accurate):
“All firewood that the applicant sells or distributes in this state is from trees grown and cut in this state. All of the firewood is treated in at least one of the following ways prior to sale or distribution in this state:
1. Each piece of firewood is heated to a temperature at least 160° F. (71.1° C.) at the center of the piece, and is maintained at that temperature for at least 75 minutes.
2. All bark, and additional wood to a depth of at least ½ inch beneath the bark, is removed from each piece of firewood.
3. The firewood is stored on the firewood dealer's premises for at least 2 years before it is sold or distributed in this state.
4. The firewood is fumigated with a registered fumigant pesticide, according to the pesticide label, to kill all insect pests that may inhabit the firewood.
5. The firewood is treated in a manner approved, in writing, by the Wisconsin Department of Agriculture, Trade and Consumer Protection, to kill all insect pests that may inhabit the firewood."
DATCP must grant or deny a certification application within 60 business days after DATCP receives a complete application. DATCP may withdraw a certification if the applicant materially misrepresents any information in the application, or fails to honor any of the commitments made in the application. A certification does not constitute a warranty, by the department, that firewood is free of pests.
Fiscal Impact
The state fiscal impact of this rule depends on the number of firewood dealers who apply for certification. There are thousands of firewood dealers in Wisconsin, but few of them will have a strong incentive to be certified under this rule. DATCP assumes that, at least initially, certification will be attractive mainly for large firewood dealers who can afford to implement the firewood treatment regimen required for certification.
Certification may be especially attractive for large firewood dealers who wish to supply firewood to Wisconsin state parks. DNR rules prohibit a firewood dealer from supplying firewood to a state park located more than 50 miles away, unless the firewood dealer is certified under this rule.
DATCP projects approximately one day of staff time to process each certification application and to inspect the firewood dealer's business premises. DATCP will incur inspector travel costs, but will attempt to minimize those costs by integrating inspections with other inspections. DATCP does not plan to do routine follow-up inspections, but may conduct occasional random inspections of certified firewood dealers.
DATCP assumes that approximately 30 firewood dealers will apply for certification under this emergency rule, for calendar year 2007. If that assumption is correct, DATCP will be able to absorb the projected workload and costs within DATCP's current budget and with current staff. However, if many more firewood dealers apply for certification, DATCP will need additional budget and staff to process applications and conduct required inspections.
Business Impact
This rule will not have a significant impact on firewood dealers in this state. This rule does not require firewood dealers to be certified, nor does it restrict the sale or distribution of firewood by uncertified dealers. This rule creates a voluntary certification program, which may benefit some firewood dealers in this state.
DNR rules prohibit a firewood dealer from supplying firewood to a state park located more than 50 miles away, unless the firewood dealer is certified by DATCP. This rule will allow certified firewood dealers to supply firewood to state parks throughout the state, regardless of the firewood dealer's distance from the park. This rule will primarily benefit large firewood dealers who can afford to implement the firewood treatment regimen required for certification.
This rule does not authorize or prohibit imports of firewood from outside this state. Current DATCP rules under ATCP 21.17 prohibit imports of firewood from areas which the U.S. department of agriculture has formally designated as being infested with certain wood pests, such as Emerald Ash Borer. DNR rules under NR 45.04(1)(g) prohibit imports of firewood to Wisconsin state parks from any location outside this state. This rule does not create an exemption to any of these existing rules. Certification under this rule is available only to firewood dealers who obtain all of their firewood from trees grown and cut in this state.
Environmental Impact
This rule will not have a significant impact on the environment. This rule does not restrict the sale or movement of firewood in this state. This rule will allow some firewood in state parks that would otherwise be prohibited by DNR rules, but only if the wood comes from a certified dealer who agrees to treat the wood to destroy plant pests such as Emerald Ash Borer. DATCP will inspect at least annually to verify that the firewood dealer has the necessary facilities and equipment to honor the agreement.
Federal Programs
Under the federal Plant Protection Act, the Animal and Plant Health Inspection Service of the United States Department of Agriculture (USDA-APHIS) has responsibility for excluding, eradicating and controlling serious plant pests, including the Emerald Ash Borer. USDA-APHIS has instituted statewide quarantines on the movement of ash wood for Illinois, Indiana and Ohio, in addition to the Lower Peninsula of Michigan. These quarantines include restrictions on the interstate movement of any hardwood (non-coniferous) firewood, and are in addition to the regulations adopted by each state related to the movement of firewood. Firewood cannot be moved from a quarantined area unless it is accompanied by an APHIS certificate that shows the firewood to be free of infested wood.
Surrounding State Programs
Surrounding states where EAB has been identified (Illinois, Indiana, Ohio and Michigan) have state and federal quarantines that prohibit the movement of regulated articles, including all hardwood firewood, out of quarantined areas. Firewood can only move out of quarantined areas after it is certified by USDA. Other surrounding states, such as Minnesota and Iowa, are conducting information and education campaigns about the danger of moving firewood and are considering regulatory options for dealing with firewood movement.
Notice of Hearing
Commerce
(Licenses, Certifications, etc., Ch.
Comm 5)
NOTICE IS HEREBY GIVEN that pursuant to ss.
101.02 (1),
101.982,
101.988 (2), and
227.24 (4) Stats., the Department of Commerce will hold a public hearing on emergency rules under chapter Comm 5 relating to the licensing of elevator contractors and installers.
Hearing Date and Location:
Wednesday, June 27, 2007, at 9:30 a.m.
Conference Room 3C
Thompson Commerce Center
201 West Washington Avenue
Madison, WI
Interested persons are invited to appear at the hearing and present comments on the emergency 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 the emergency rules will remain open until July 6, 2007, 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 James Quast, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at
jim.quast@wisconsin.gov.
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 (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.
The emergency rules and an analysis of the 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
roberta.ward@wisconsin.gov, or at telephone (608) 266-8741 or (608) 264-8777 (TTY). Copies will also be available at the public hearing.
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
carol.dunn@wisconsin.gov.
Notice of Proposed Rulemaking
Health and Family Services
NOTICE IS HEREBY GIVEN that under
2005 Act 74, the Department of Health and Family Services (Department) will repeal ch.
HFS 119, relating to the Health Insurance Risk-sharing Plan. Because the repeal of ch.
HFS 119 is in conformity with
2005 Act 74, the Department, under s.
227.16 (2) (b), Stats., will not hold a public hearing concerning this matter.
Analysis Prepared by Department of Health and Family Services
Effective July 1, 2006, the Department's authority to operate the Health Insurance Risk-Sharing Plan (HIRSP) was transferred, under
2005 Act 74, to the Health Insurance Risk-Sharing Plan Authority. Repeal of ch.
HFS 119 is, therefore, required.
Text of Proposed Rule
The full text of the order to repeal ch.
HFS 119 is as follows:
SECTION 1. Ch. HFS 119 is repealed.
Fiscal Estimate
The order to repeal ch.
HFS 119, will not result in a fiscal impact that is independent of that identified in the fiscal estimate made by the Department for 2005 Assembly Bill 844, creating
2005 Act 74.
A copy of the full text of the fiscal estimate may be obtained at no charge at the Wisconsin Administrative Rules website at
http://adminrules.wisconsin.gov.
Initial Regulatory Flexibility Analysis
Not applicable.
Contact Person
Rosie Greer
DHFS
P.O. Box 7850
Madison, WI 53707-7850
608-266-1279
Because this is an order to repeal a rule that under
2005 Act 74, the Department no longer has the authority to promulgate or implement rules relating to HIRSP, a public hearing will not be held on this matter. Questions about this order may be submitted to the contact person listed above.
Submit questions about HIRSP or the HIRSP Plan Authority to:
Josh Weisbrod
HIRSP Plan Authority
(608) 441-5777
Notice of Hearing
Revenue
Notice is hereby given that, pursuant to s.
227.11(2)(a), Stats., and interpreting s.
125.68 (10) (bs), Stats., the Department of Revenue will hold a public hearing at the time and place indicated below, to consider the amendment of ch.
Tax 8, relating to
reciprocal interstate shipments of wine.
Hearing Information
The hearing will be held at 9:00 A.M. on Thursday, June 28, 2007, in the Events Room (1st floor) of the State Revenue Building, located at 2135 Rimrock Road, Madison, Wisconsin.
Handicap access is available at the hearing location.
Comments on the Rule
Interested persons are invited to appear at the hearing and may make an oral presentation. It is requested that written comments reflecting the oral presentation be given to the department at the hearing. Written comments may also be submitted to the contact person shown below no later than July 5, 2007, and will be given the same consideration as testimony presented at the hearing.
Contact Person
Small Businesses:
Tom Ourada
Department of Revenue
Mail Stop 624-A
2135 Rimrock Road
P.O. Box 8933
Madison, WI 53708-8933
(608) 266-8875
Others:
Dale Kleven
Department of Revenue
Mail Stop 6-40
2135 Rimrock Road
P.O. Box 8933
Madison, WI 53708-8933
(608) 266-8253
Analysis by the Department of Revenue
Explanation of agency authority: Section
227.11(2)(a), Stats., provides that each agency may promulgate rules interpreting the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute.
Related statute or rule: There are no other applicable statutes or rules.
Plain language analysis: This proposed rule order amends a provision specifying the amount of wine an individual may receive per year from a winery in a reciprocal state. Based on a statutory change, this amount was increased from 9 liters to 27 liters. The proposed rule order also makes changes to reflect a change in title of a liquor tax reporting form and provide current contact information for obtaining the form.
Summary of, and comparison with, existing or proposed federal regulation: There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
Comparison with rules in adjacent states: The department is not aware of a similar rule in an adjacent state.
Summary of factual data and analytical methodologies: Section
125.68 (10) (bs), Wis. Stats., was amended by
2005 Act 25 to increase the amount of wine an individual may receive per year from a winery in a reciprocal state from 9 liters to 27 liters. The department has created this proposed rule order to reflect this statutory change.
Analysis and Supporting Documents used to Determine Effect on Small Business: The proposed rule reflects a statutory change relating to shipments of wine between Wisconsin and states with which Wisconsin has a reciprocal agreement described in s.
139.035, Stats. As the proposed rule does not impose any significant financial or other compliance burden, the department has determined that it does not have a significant effect on small business.
Anticipated costs incurred by private sector: This proposed rule order does not have a significant fiscal effect on the private sector.
Effect on small business: This proposed rule order does not have a significant effect on small business.
Agency Contact Person
Please contact Dale Kleven at (608) 266-8253 or
dkleven@dor.state.wi.us, if you have any questions regarding this proposed rule order.
Written Comments
Comments may be submitted to the contact person shown below no later than one week after the public hearing on this proposed rule order is conducted. Information as to the place, date, and time of the public hearing will be published in the Wisconsin Administrative Register.
Dale Kleven
Department of Revenue
Mail Stop 6-40
2135 Rimrock Road
P.O. Box 8933
Madison, WI 53708-8933
Text of Rule
SECTION 1. Tax 8.24(1)(a)3. is amended to read:
Tax 8.24(1)(a)3. No more than 9 27 liters are received by any one individual during a calendar year.
SECTION 2. Tax 8.24(6) is amended to read:
Tax 8.24 (6). REPORTING REQUIREMENTS BY WISCONSIN WINERIES. Every winery located in Wisconsin that ships wine to another state as described in this section shall report those sales on Wisconsin form AB-131, Wisconsin Liquor Tax Multiple Tax Schedule, as tax-paid sales. A description of each sale shall appear on the report.
Note to Revisor: Replace the first note at the end of Tax 8.24(6) with the following:
Note: Form AB-131 may be obtained by calling (608) 266-1961; by writing to Wisconsin Department of Revenue, Forms Request Office, Mail Stop 5-77, PO Box 8949, Madison WI 53708-8949; or by accessing the department's web site at
www.revenue.wi.gov.
Initial Regulatory Flexibility Analysis
This proposed rule order does not have a significant economic impact on a substantial number of small businesses.
Fiscal Estimate
Under the proposed rule, the quantity of wine shipped to individuals in Wisconsin is expected to increase by an unknown amount. Although the wine tax is paid by the shipper to the state from which the wine is being shipped, the Department does not expect any significant reduction in tax revenues since the occupational tax rate on wine is quite small - 6.605¢ per liter (for wine with 14% or less of alcohol by volume). In addition, while the rule may cause some minor reduction in wine sales on which sales taxes are collected, this impact is also expected to be minimal.
The proposed rule does not impose any significant financial and compliance burden on the department.
Notice of Hearing
Transportation
NOTICE IS HEREBY GIVEN that pursuant to ss.
85.095,
85.16(1) and
227.11(2), Stats., and interpreting s.
85.095, Stats., as amended by
2003 Wis. Act 208, the Department of Transportation will hold a public hearing in Room 701 (Waukesha Conference Room) of the Hill Farms State Transportation Building, 4802 Sheboygan Avenue, Madison, Wisconsin on the
29th day of
June, 2007, at
10:30 AM, to consider the amendment of ch.
Trans 28, Wis. Adm. Code, relating to the harbor assistance program.
An interpreter for the hearing impaired will be available on request for this hearing. Please make reservations for a hearing interpreter at least 10 days prior to the hearing.
Parking for persons with disabilities and an accessible entrance are available.
Analysis Prepared by the Wisconsin Department of Transportation
Explanation of agency authority: The Wisconsin Department of Transportation administers the Wisconsin Harbor Assistance Program, pursuant to s.
85.095, Stats. Chapter
Trans 28 prescribes the administrative policies and procedures for implementing the Harbor Assistance Program authorized by s.
85.095, Stats.
Related statute or rule: There are no related statutes or rules other than those listed above.
Plain language analysis: 2003 Wis. Act 208 amended s.
85.095, Stats., to open the Wisconsin Harbor Assistance Program to private and public owners of harbors operating commercial transportation facilities. When such facilities are taken out of commercial use, there remains a need to maintain the wharf along such a property to ensure the integrity of the harbor's commercial navigation channel. Allowing Harbor Assistance Program grants to be used to rehabilitate such facilities would help protect the navigation channels and enhance public access to waterfront resources.
Summary of federal regulation: There are no comparable federal laws or regulations.
Comparison with rules in the following states:
Michigan: Harbor assistance in Michigan takes the form of operating and capital assistance to port authorities that oversee ferryboat operations. The capital assistance is found in the marine capital line of the state budget.
Minnesota: Minnesota created a Port Development Assistance Program in 1996. Their program is patterned after the Wisconsin Harbor Assistance Program in that it uses both state funds and bonding authority to fund infrastructure improvement projects.
Illinois: None.
Iowa: None.
Summary of factual data and analytical methodologies: No data or analytical methodology was employed in considering this rule making.
Effect on Small Business
This proposed rule will have no significant adverse impact on small businesses. The Department's Regulatory Review Coordinator may be contacted by e-mail at
ralph.sanders@dot.state.wi.us, or by calling (414) 438-4585.
Fiscal Effect
The Department estimates that there will be no fiscal impact on the liabilities or revenues of any county, city, village, town, school district, vocational, technical and adult education district, sewerage district, or federally-recognized tribes or bands, unless they sponsor a project and subsequently sign a grant agreement committing themselves to pay the required matching share.
Anticipated costs incurred by private sector
The Department estimates that there will be no fiscal impact on state or private sector revenues or liabilities unless they sponsor a project and subsequently sign a grant agreement committing themselves to pay the required matching share.
Agency contact person and place where comments are to be submitted and deadline for submission:
The public record on this proposed rule making will be held open until close of business the day of the hearing to permit the submission of comments in lieu of public hearing testimony or comments supplementing testimony offered at the hearing. Any such comments should be submitted to Larry Kieck, Department of Transportation, Harbors and Waterways Program, Room 701, P. O. Box 7914, Madison, WI 53707-7914. You may also contact Mr. Kieck by phone at (608) 267-9319.
Notice of Hearing
Workforce Development
(Unemployment Insurance)
NOTICE IS HEREBY GIVEN that pursuant to ss.
108.14 (2) and s.
227.11 (2) (a), Stats., the Department of Workforce Development proposes to hold a public hearing to consider rules affecting ch.
DWD 128, relating to unemployment insurance rules for determining a claimant's ability and availability for work and affecting small businesses.
Hearing Information
Wednesday, July 18, 2007, at 1:30 p.m.
GEF #1, Room A415
201 E. Washington Avenue
Madison, WI
Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call (608) 267-9403 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
Explanation of agency authority. To be eligible to receive unemployment insurance benefits, an individual must, in addition to other requirements, be “able" to perform suitable work and be “available" for suitable work.
Section
108.04 (2) (a) 1., Stats., provides that a claimant shall be eligible for benefits for any week of total unemployment only if the claimant is able to work and available for work during the week.
Section
108.04 (1) (b) 1., Stats., provides that an employee is ineligible for benefits while the employee is unable to work, or unavailable for work, if his or her employment with an employer was suspended by the employee or by the employer or was terminated by the employer because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, except in certain circumstances.
Section
108.04 (7) (c), Stats., provides that the disqualification for an employee's voluntary termination of work does not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work or because of the health of a member of his or her immediate family; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while the inability or unavailability continues.
Section
108.04 (8) (e), Stats., provides that if an employee fails to accept suitable work with good cause or return to work with a former employer that recalls the employee with good cause, but the employee is unable to work or unavailable for work, the employee shall be ineligible for the week in which the failure occurred and while the inability or unavailability continues.
Summary of the proposed rule. Under the current Chapter
DWD 128, a claimant is not considered “able" to work if the claimant's physical or psychological ability to work limits the claimant to less than 15% of the opportunities for suitable work in the claimant's labor market area. A claimant is not considered “available" for work if the claimant restricts his or her availability for work to less than 50% of the full-time opportunities for suitable work. The Department has found that rigid adherence to percentage standards sometimes produces results that are arbitrary and inconsistent. The Department is unaware of any other states that use percentage tests to determine whether a claimant is “able and available" to work.
The Department proposes to amend Chapter
DWD 128 to clarify the determination when claimants are able to work and available for work. The proposed rule eliminates the requirement that a claimant be “able" to work 15% of the opportunities for suitable work in the claimant's labor market area and replaces this with five relevant factors the Department may consider in making the determination whether the claimant is considered to have withdrawn from the labor market due to physical or psychological inability to work and is therefore ineligible for benefits. Appropriate factors include, but are not limited to: (1) the claimant's usual or customary occupation; (2) the nature of the restrictions; (3) the qualification to do other work based on the claimant's education, training and experience; (4) the ability to be trained in another occupation; and (5) certain occupational data and reports available to the Department.
The proposed rule also eliminates the requirement that a claimant be “available" for work 50% of the full-time opportunities for suitable work in the claimant's labor market area and the requirement that first shift full-time work governs the availability standard for most jobs and replaces this with eight relevant factors the Department may consider in making the determination whether a claimant is considered to have withdrawn from the labor market by restricting his or her availability to work and is therefore ineligible for benefits. These factors include: (1) restrictions on the claimant's salary or wages; (2) shift and time restrictions; (3) travel and transportation restrictions; (4) incarceration for more than 48 hours in a week; (5) other absence from the labor market for more than 48 hours in a week; (6) the types of work sought; (7) other unreasonable restrictions on the claimant's working conditions; and (8) occupational and employment conditions data and reports available to the Department.
The proposed rule carries over from federal law the general presumption that a claimant is able and available to work if the claimant is registered to work and does the required work search. The proposed rule will help the Department determine whether a claimant is “able and available" for work based on the claimant's attachment to, or withdrawal from, the labor market by methods that are more transparent than the percentage standards and are more understandable to claimants and employers.
The proposed rule also deletes the provision that overpayments will not be collected for benefits erroneously paid before issuance of an eligibility determination for a given week, clarifies the difference between refusal of work and availability for work, incorporates the federal standard for proof of alien status, and deletes the grace period for claimants with uncontrollable restrictions as unnecessary in light of the new definition of able to work.
Summary of, and comparison with, existing or proposed federal regulations. The Department of Labor issued a new rule on the able and available requirement on January 16, 2007. The federal rule codifies the longstanding interpretation that the Social Security Act and the Federal Unemployment Tax Act require states to limit payment of unemployment insurance to individuals who are able and available for work. This interpretation had not previously been comprehensively addressed in the federal regulations.
The federal regulation provides that a state may consider an individual to be able to work during the week of unemployment claimed if the individual is able to work for all or portion of the week, provided any limitation on his or her ability to work does not constitute a withdrawal from the labor market.
A state may consider an individual to be available for work during the week of unemployment claimed under any of the following circumstances: (1) the individual is available for any work for all or a portion of the week, provided any limitation does not constitute a withdrawal from the labor market; (2) the individual limits his or her availability to work which is suitable as determined under state law; and (3) the individual is on temporary lay-off and is available to work only for the employer that has temporarily laid-off the individual.
A state may consider an individual to be available for work if the individual is appearing for jury duty under a lawfully issued summons. A state must not deny unemployment benefits to an individual for failure to be available for work if the individual is in approved training. An alien must be legally authorized to work to be considered available for work in the United States.
Comparison with rules in adjacent states: Iowa's rules provide that to be able to work an individual must be physically and mentally able to work in some gainful employment, not necessarily in the individual's customary occupation. An individual is available for work if he or she if willing, able, and ready to accept suitable work which the individual does not have good cause to refuse. An individual may have shift restrictions if the individual is available for the same shift in which his or her wage credits were earned and the individual has a reasonable expectation of securing employment. If a part-time worker is available to the same degree and to the same extent as when his or her wage credits were earned, the individual meets the availability requirement. An individual is available while serving on jury duty. An individual may not be eligible for benefits if the individual has imposed restrictions that leave the individual with no reasonable expectation of securing employment, including restrictions such as type of work, hours, wages, location, or physical restrictions.
The Illinois rules provide that an individual is able to work when physically and mentally capable of performing work for which the individual is otherwise qualified. The focus for ability to work is on the individual's condition; the employers' willingness to hire is irrelevant. The focus also is on any work the individual can perform, not limited to the usual or most recent job. The rule provides that the best evidence that an individual is able to work in a particular occupation is that the individual has performed such work. An individual is available for work unless a condition so narrows opportunities that he has no reasonable prospect of securing work. An individual is unavailable if: domestic circumstances prevent an individual from working during “normal" days and hours in the occupation, the individual demands a wage that is unreasonable, the individual unreasonably restricts the distance the individual is willing to travel to work, or an individual's personal habits are inconsistent with the type of work the individual is seeking. An individual will not be unavailable for refusing to consider work that would violate sincerely held religious or moral convictions. If the individual is self-employed, availability depends on the nature and extent of the self-employment. Whether a seasonal worker is available during the off-season is determined by whether there is some prospect of obtaining work in the individual's customary occupation. When an individual appears to be imposing a condition on acceptance of work, it must be established whether this is a preference or an actual condition on availability. The best evidence that an individual is available for work is that the individual readily secures work despite the imposition of a condition.
Michigan does not have rules on ability and availability for work. Minnesota does not have unemployment insurance rules.
Summary of factual data and analytical methodologies. The Department has found that rigid adherence to percentage standards sometimes produces results that are arbitrary and inconsistent. The proposed rule will help the Department determine whether a claimant is “able and available" for work based on the claimant's attachment to, or withdrawal from, the labor market by methods that are more transparent than the percentage standards and are more understandable to claimants and employers.
Fiscal Estimate
The proposed rule was developed to promote sound administrative practice and provide more reasonable outcomes for employers and employees than sometimes occur with rigid application of percentage standards under the existing rule. Although the conceptual approach is different, relying on a standard of reasonableness rather than clear percentage standards, only a few of the changes are expected to have a significant fiscal impact, which is identified below.
The proposed rule repeals the prohibition against disqualifying a claimant for any week for which a check has been mailed before resolution of an able and available eligibility issue affecting that week. Recovering these overpayments is expected to reduce expenditures by $600,000.
The current rule provides that a claimant must be able to perform at least 15% of all suitable jobs in the claimant's labor market when the claimant's inability to work is due to uncontrollable circumstances. The proposed rule defines inability to work more clearly as physically or psychologically unable to work and would find unable only the claimant who is not able to do any suitable work. Such claimant would still be required to meet all the conditions specified under availability for work. The change is intended to accommodate workers with disabilities. The standard would apply to claimants currently found unable under ss.
108.04 (2),
108.04 (1) (b) 1.,
108.04 (7) (c), and
108.04 (8) (e), Stats. The Department's analysis of a sample of claimants denied benefits under s.
108.04 (2), Stats., found the estimated cost of the new standard for such claimants to be $300,000. Assuming that the experience of individuals denied under ss.
108.04 (1) (b) 1.,
108.04 (7) (c), and
108.04 (8) (e), Stats., is proportional to that of those denied under s.
108.04 (2), Stats., the total increase in benefit expenditure would be $900,000.
The current rule provides that a claimant must be available for first shift, full-time work. The proposed rule provides that the claimant be available to perform full-time work during the standard hours in which work is performed in the occupations for which the claimant has prior training and experience. In determining when work is performed, consideration is given to the hours and length of shift the claimant has worked since the start of the base period; generally, 15 to 18 months before filing a claim. This change is expected to increase expenditures by $300,000.
Of the net increase in expenditure of $600,000, the amount of $576,000 would be incurred by taxable employers and $24,000 by employers that reimburse the Reserve Fund for benefits paid on behalf of former employees. The estimated cost to local units of government reimbursing the Fund is $10,200 and the estimated cost to state government is $5,400.
Effect of rule on small businesses. The rule will affect small businesses but will not have a significant economic impact on a substantial number of small businesses. The Department's Small Business Regulatory Coordinator is Jennifer Jirschele,
jennifer.jirschele@dwd.state.wi.us, (608) 266-1023.
Analysis used to determine effect on small business: The proposed rule affects how the department will determine whether a claimant is able and available for work. The proposed rule does not add or change any requirements for small businesses. There are no reporting, bookkeeping, or other procedures required for compliance with the proposed rule and no professional skills are required of small businesses.
Agency Contact Person
Submission of Comments and Deadline for Comments
An electronic copy of the proposed rules is available at
http://www.dwd.state.wi.us/dwd/hearings.htm. A copy of the proposed rules is also available at
http://adminrules. wisconsin.gov. 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 or fiscal estimate by contacting:
Elaine Pridgen
Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
(608) 267-9403
Written comments on the proposed rules received at the above address, email, or through the http://adminrules. wisconsin.gov web site no later than July 19, 2007, will be given the same consideration as testimony presented at the hearing.
