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.
